problematic provenance: toward a coherent united states ... · problematic provenance: toward a...

COMMENTS

PROBLEMATIC PROVENANCE: TOWARD A COHERENTUNITED STATES POLICY ON THE INTERNATIONAL

TRADE IN CULTURAL PROPERTY

MARY McKBNNA*

1. INTRODUCTION

The 1980s have seen United States policy gradually retreat fromthe trend, traceable from the United Nations Educational, Scientificand Cultural Organization Convention of 1970 ("UNESCO Conven-tion") through the much-discussed McClain decisions1 of 1979, toward

* J.D., 1990, University of Pennsylvania Law School; A.B., 1983, HarvardUniversity.

1 The McClain case resulted in two proceedings and two appeals, United States v.McClain, 545 F.2d 988 (5th Cir. 1977), reh'g denied, 551 F.2d 52 (5th Cir. 1977),and United States v. McClain, 593 F.2d 658 (5th Cir. 1979). In the first appeal, thedefendants were convicted of theft under the National Stolen Property Act, 18 U.S.C.§§ 2314, 2315 (1970 & Supp. 1990) [hereinafter NSPA], for dealing in pre-Columbianobjects exported from Mexico in violation of Mexican law purporting to vest title to allsuch property in the Mexican government. Articulating the theory underlying the con-victions, the court reasoned that, for purposes of the NSPA, which forbids the transpor-tation in interstate commerce or the receipt of stolen goods, illegally exported artifactssubject to such a national declaration of ownership are "stolen." The second McClainappeal resulted in a reversal of the substantive NSPA conviction (although the court ofappeals sustained convictions for conspiracy) on the grounds that the particular statuteupon which the Mexican government based its claim was too vague to satisfy UnitedStates constitutional standards for criminal proceedings. However, the decision left openthe possibility that a person might be convicted under the NSPA for conduct like thatof the McClain defendants under similar circumstances. (Indeed, the court implied thatin McClain itself the United States Department of Justice might have secured a convic-tion had it rested its case on another, more recent Mexican statute than the one actuallyrelied upon by the prosecution. McAlee, From the Boston Raphael to Peruvian Pots:Limitations on the Importation of Art Into the United States, 85 DicK. L. Rxv. 565,584 (1981) [hereinafter McAlee, From the Boston Raphael] (citing McClain, 593 F.2dat 662). See generally P. BATOR, THE INTERNATIONAL TRADE IN ART 74-78 (1983)(possible negative consequences of McClain in criminal and civil suits involving ex-ported cultural property reposing in the United States); Fitzpatrick, A WaywardCourse: The Lawless Customs Policy Toward Cultural Properties, 15 N.Y.U. J. Irr'LL. & POL. 857, 873-74 (1983) (problems raised by McClain); McAlee, supra, at 578-99 (critical discussion of McClain cases and their consequences); Note, The Current

U. Pa. J. Int'l Bus. L.

enormous - almost complete - deference to foreign parties com-plaining of having been unjustly stripped of culturally significant prop-erty.2 In the wake of the current explosion in the worldwide market forart and antiquities, 3 as well as the soaring popularity of art objects aseconomic investments4 rather than pieces intended primarily for sensorydelectation, the United States appears to have reawakened to its ownnational interests and, perhaps, been jolted into appreciating the tenu-ousness of its long-held status as a central participant in the flourishingart trade.5

The present Comment will attempt to demonstrate how recent de-velopments in United States statutory and decisional law have broughtthe United States closer than at any point in the past two decades toestablishing a coherent policy with respect to its position in the worldart market. This convergence in the United States' legislative and judi-cial treatment of disputes involving the international movement of cul-tural property seems to portend a practical resolution to the problem ofconflicting national policies with which United States courts and legis-

Status of the International Art Trade, 10 SursoLK TRANSNAT'L L.J. 51, 76-79(1986) [hereinafter Note, The Current Status] (legal and political difficulties raised byMcClain); see also McAlee, The McClain Case, Customs, and Congress, 15 N.Y.U. J.INT'L L. & POL. 813 (1983) [hereinafter McAlee, The McClain Case]. But see Note,Harmonious Meeting: The McClain Decision and the Cultural Property Implementa-tion Act, 19 CORNELL INT'L L.J. 311 (1986) [hereinafter Note, Harmonious Meeting].

I See P. BATOR, supra note 1, at 6-8 ("Throughout the 1970s developments inthe United States and the rest of the world responded to this heightened sense of con-cern [about international commerce in art and antiquities, often looted or stolen, consti-tuting part of an exporting country's national patrimony.]"); Merryman, Two Ways ofThinking about Cultural Property, 80 Am. J. INT'L L. 831, 850 (1986) [hereinafterMerryman, Two Ways of Thinking] ("[1]n the 1970s and 1980s, the dialogue aboutcultural property has become one-sided. Retentive nationalism [as opposed to culturalpluralism] is strongly and confidently represented and supportively received whereverinternational cultural property policy is made.").

I See, e.g., Reif, Records, Of Course, at the '88 Auctions, N.Y. Times, Jan. 26,1989, at C1, col. 1; Reif, Auctions, N.Y. Times, Nov. 17, 1989, at 033, col. 1.

4 See, e.g., Hughes, Art and Money: Who's Winning and Who's Losing as PricesGo Through the Roof, TIME, Nov. 27, 1989, at 64; Johnson, Art: Finding a Pot ofGold in Paintings, MONEY, Aug. 1978, at 36, cited in Comment, The Recovery ofStolen Art: Of Paintings, Statues, and Statutes of Limitations, 27 UCLA L. REv.1122, 1123 n.2 (1980) [hereinafter Comment, The Recovery of Stolen Art]; Keresztes,Your Money Matters: Collecting for Profit, Wall St. J., Mar. 13, 1978, at 34, col. 1,cited in P. BATOR, supra note 1, at 15 n.41. Art sales through the world's largestauction house, Sotheby's (formerly Sotheby Parke-Bernet), increased from $108 millionto $610 million between the 1971-72 season and the 1980-81 season. N.Y. Times, July10, 1982, at 11, col. 1, cited in Note, Title Disputes in the Art Market: An EmergingDuty of Care for Art Merchants, 51 GEo. WASH. L. REv. 443, 443 n.1 (1983) [herein-after Note, Title Disputes in the Art Market].

5 The increase of art trade abroad, at the expense of the United States market, ismost vividly seen in the dramatic rise, over the past twenty-five years, of Japan as akey center for international commerce in art. See, e.g., Hughes, supra note 4, at 65.

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CULTURAL PROPERTY TRADE

lators have sporadically struggled, often without focus, throughout thisnation's history' and more intensely over the past twenty years.

2. DEFINING THE PROBLEM

2.1. Policy Conflicts

At the heart of the problem lies the difficulty in attempting to rec-oncile two fundamental desires of the United States government. Onone hand, the United States would like to maintain friendly diplomaticrelations with art exporting countries and to acknowledge the right ofeach country to keep within its borders objects representative of its na-tional patrimony. Doing so may require severe limits on the importa-tion and trade in artworks in the United States. On the other hand,United States policymakers would like to encourage free trade in worksof historical or aesthetic merit. A healthy art market stimulates theAmerican economy as well as makes the United States a repository forworks of beauty and cultural value originating in various lands.7

2.2. Problems in Deterring Illegitimate Trade in Art

The challenge faced by the various branches of the United Statesgovernment - executive, legislative, and judicial - of curbing the ille-gitimate art trade without inhibiting the flow of art through legitimatecommercial channels is especially thorny because there is often no clearseparation between the two markets.8 Second, determining which oftwo or more conflicting parties has good title to a work of art obtainedthrough international trade is complicated by issues of interpretationand conflict of laws9 whose resolution frequently bears on sensitive dip-

6 See generally Comment, The Evolution of American Attitudes and Laws Re-garding Ethnic Art and Artifacts: From Cultural Imperialism to Cultural Pluralism,9 Loy. L.A. INT'L & Com'. L.J. 621 (1987) [hereinafter Comment, The Evolution ofAmerican Attitudes].

' See generally Merryman, Two Ways of Thinking, supra note 2 (extensive dis-cussion of policies among various nations of "cultural nationalism," which, fearing "de-contextualization," advocates the retention of cultural property by its country of origin,or "cultural internationalism," which emphasizes the legitimacy of the internationalmovement of art and antiquities for scholarly and economic purposes); see also P. BA-TOR, supra note 1, at 18-34 (consideration of values regarding cultural property lead-ing to conclusion that, subject to certain qualifications, "there should be a large interna-tional trade - at fair prices - in those nonmonumental art treasures whose exportdoes not jeopardize the legitimate cultural patrimony - that is, whose export will leavestanding a rich and representative collection at home"); Merryman, International ArtLaw: From Cultural Nationalism to a Common Cultural Heritage, 15 N.Y.U. J.INT'L L. & POL. 757 (1983).

£ See infra text accompanying notes 34-36, 141.o See, e.g., Kunstsammlung zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir.

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lomatic relations between the United States and the exporting coun-try.' 0 Third, even established principles of United States law (e.g.,those embodied in the provisions of the Uniform Commercial Code) aredifficult to apply where the basic assumptions of those rules, for exam-ple, that title to an object is void because the work has been stolen, arecontroverted. 1 Given these complications it is not hard to see why Con-gress and the courts have for so long been unable to formulate a coher-ent body of rules that might be applied to generate a satisfactory out-come - fair to all the interests, private and public, international anddomestic - in almost every case.

3. NEW SOLUTIONS: BALANCING POLICY INTERESTS

In addition to according greater consideration to the United States'own economic interests, the recent legal developments with which thisComment deals give appropriate weight to the rights of foreign claim-ants. These developments, including ratification of the Convention onCultural Property Implementation Act 2 and the judicial balancingprocess employed by the Court of Appeals for the Second Circuit in theimportant case of DeWeerth v. Baldinger,'3 complement American ef-forts in both public and private arenas 4 to deter black market art

1982); Jeanneret v. Vichey, 541 F. Supp. 80 (S.D.N.Y. 1982), rev'd and remanded,693 F.2d 259 (2d Cir. 1982).

10 E.g., United States v. McClain, 593 F.2d 658 (5th Cir. 1979)." For instance, using the definition of "stolen property" adopted in McClain

could allow the Mexican government in a civil action for replevin to recover pre-Co-lumbian works from a good-faith United States purchaser. P. BATOR, supra note 1, at75-77. Otherwise, the bona fide buyer would be considered to have acquired good titleto the piece even were the seller-importer's title defective due to her violations of Mexi-can export regulations or other claims to title by Mexico. U.C.C. § 2-403(1). Cf Auto-cephalous Greek-Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts,Inc., 917 F.2d 278 (7th Cir. 1990) (action by church and by Republic of Cyprus torecover mosaics, in possession of United States art dealers, that had allegedly been re-moved before sale to dealers in Switzerland from church in Turkish-occupied part ofCyprus by Turkish agents); Jeanneret v. Vichey, 541 F. Supp. at 80 (action by artdealer, good-faith purchaser of a painting, for breach of warranty of title under U.C.C.§ 2-312, based on alleged cloud on title created by Italian government's claims restingon assertion that painting had been exported by seller in violation of Italian law); At-torney General of New Zealand v. Ortiz, [1983] 2 W.L.R. 809, [1983] 2 All E.R. 93(action in English court for return of unlawfully exported Maori artifact to whichgovernment of New Zealand, unsuccessfully, claimed title).

12 See infra note 17.13 836 F.2d 103 (2d Cir. 1987), cert. denied, 486 U.S. 1056, 108 S. Ct. 2823, 100

L. Ed. 2d 924 (1988).1I Examples of such efforts include: United States participation in bilateral and

multilateral international treaties, see generally Note, The Illicit Movement of Art andArtifact: How Long Will the Art Market Continue to Benefit from Ineffective LawsGoverning Cultural Property?, 13 BROOKLYN J. IT'L L. 55, 60-68 (1987) [hereinaf-ter Note, The Illicit Movement of Art and Artifact]; informal dispute resolution and

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transactions1" and limit the wholesale pillage of culturally significantobjects from countries whose political or economic weakness may belietheir wealth in desirable works of art.'" Thus, the United States hasmoved closer to a justly equilibrated foreign policy, supported by legalactions demonstrating both internal and external consistency, with re-gard to issues concerning the status of imported artworks.

3.1. The Convention on Cultural Property Implementation Act

The Convention on Cultural Property Implementation Act (here-inafter CPIA), ratified in 1983 and effectuated in 1986,'17 has set acourse for judicial action in line with a national policy to advanceUnited States economic and cultural interests in addition to recognizingthe rights of other nations to preserve their cultural heritages.

The terms of the CPIA as enacted"8 embody Congress' intent topreserve the central place of the United States in the burgeoning global

international diplomatic cooperation, see infra text accompanying notes 165-73 & note173; legal regulation of the art trade at state and local levels, see sources cited infranote 21, 160; and self-regulation by professional organizations, see infra note 172.

15 A more cautious approach toward foreign export restrictions will set the stagefor a healthy regulated, but not smothered, art trade in the United States. See P. BA-TOR, supra note 1, at 41-43 ("The ineffectiveness of embargo: Ten easy lessons on howto create a black market"); S. WnLwAms, THE INTERNATIONAL AND NATIONAL PRO-TEGTION OF MOVEABLE CULTURAL PROPERTY 126 (1978) (administration of rigidexport controls encourages illegal activity); Prott, International Control of Illicit Move-ment of the Cultural Heritage: The 1970 UNESCO Convention and Some PossibleAlternatives, 10 SYRACUSE J. INT'L L. & CoM. 333, 334 (1983) (less stringent importregulations allow the legitimate art trade to flourish).

16 See, e.g., Comment, The Evolution of American Attitudes, supra note 6, at623-24 (generally recognized character of the "illicit flow of objects from art-rich, eco-nomically poor third-world countries to wealthy art-importing nations").

17 19 U.S.C. §§ 2601-2613 (1982). United States Customs regulations providingthe mechanism through which to enforce the Act were at last promulgated on March31, 1986 (19 C.F.R. §§ 12.102-12.104). The ratification of the Convention on CulturalProperty Implementation Act made the United States an active party to the UNESCOConvention on the Means of Prohibiting and Preventing the Illicit Import, Export andTransfer of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231 (1972), reprinted in10 I.L.M. 289 (1971) [hereinafter UNESCO Convention]. As discussed below, theCPIA contains a number of modifications of the original terms of the Convention, lim-iting its broad sweep with respect to the enforcement of claims for the return of culturalproperty to foreign governments. See, e.g., Fitzpatrick, supra note 1, at 872, 876-77;Merryman, Thinking About the Elgin Marbles, 83 MICH. L. REv. 1881, 1891-92 n.30(1985); Comment, The Evolution of American Attitudes, supra note 6, at 630-31. Seealso Note, The Illicit Movement of Art and Artifact, supra note 14, at 64-65 (provi-sions of the original draft of the UNESCO Convention itself were "amended andwatered down" to gain wider acceptance by parties, with United States registering for-mal reservations to final terms proscribing acquisition of illegally exported material byinstitutions).

16 See supra note 17.

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art trade,'19 to foster international cultural exchange, and to help, withthe participation of other nations, stem illegal traffic in art and antiqui-ties."0 Some inconsistency remains in the United States' treatment ofclaims regarding cultural property residing in or entering the countryas a result of international trade, whether lawful or illicit. 21 But theCPIA provides for the first time clear guidelines for United Statescourts presented with claims for the recovery of cultural property ex-ported from other nations, particularly in situations where the validityof those claims turns on provisions of another country's domestic law.

The uncertainty engendered by the controversial McClain deci-

19 But see Comment, The Evolution of American Attitudes, supra note 6, at 633-35 (joining the UNESCO Convention and passing the CPIA may in fact have put theUnited States in a vulnerable position with respect to other major art importing coun-tries which adopt laissez-faire attitudes toward illicit traffic in cultural property andwhich refuse to sign onto the Convention). See also McAlee, supra note 1, at 604(discussing concerns, expressed prior to passage of the CPIA, that United States adop-tion of the UNESCO Convention would do little to curb the black market in culturalproperty but instead would divert trade to other art importing nations). These fearswere recently given credence in the remark of Andr6 Emmerich, a prominent NewYork dealer who formerly traded in pre-Columbian antiquities, concerning the effect ofrecent United States policy: "It all goes to Geneva now. Don't kid yourself. The marketcontinues, but not here." Grimes, The Antiquities Boom: Who Pays the Price?, N.Y.Times Magazine, July 16, 1989, at 24; cf also Honan, Second Missing ManuscriptTurns Up in German Hands, N.Y. Times, June 16, 1990, at Al, col. 1 (noting leni-ency of Swiss law regarding traffic in art of questionable provenance).

20 Professor Fitzpatrick has written:

As the comprehensive statement of U.S. policy on the importation of cul-tural properties, the Cultural Property Law [CPIA] reflects the painstak-ing efforts of Congress to balance the legitimate but sharply competinggoals of archaeologists and anthropologists, art dealers and collectors, mu-seum directors, the academic community, and the bureaucrats from theState and Justice Departments, the United States Information Agency andthe Customs Service.

Fitzpatrick, supra note 1, at 859; cf. L. PaoTr & P.J. O'KzEEr, LAW AND THE CUL-TURAL HERITAGE, VOL. I: DIscovERY AND EXCAVATION 15-27 (1984) (catalogue ofcompeting interests to be considered in legislative action regarding cultural property).

21 Variations exist among standards expressed in state and local laws regulatingthe art market, for example, state "art laws" extant in some jurisdictions, such as NewYork and California (e.g., statutes cited in Note, The Current Status, supra note 1, at63 n.58); local regulations such as New York's Arts and Cultural Affairs and Con-sumer Protection Laws (see generally Note, The Illicit Movement of Art and Artifact,supra note 14, at 74-80; Putting Price Tags in Art Galleries, N.Y. Times, Sept. 18,1988, § 1, at 58, col. 3); state common law (see, e.g., Comment, The Recovery of StolenArt, supra note 4, at 1147-48 (contrasting certain New York and New Jersey decisionsin cases dealing with stolen art)); and interpretations of Uniform Commercial Codeprovisions (see, e.g., Note, Title Disputes in the Art Market, supra note 4 (discussingNew York decision imposing hitherto unique prerequisites for art merchants to achievestatus of good faith purchasers under the Code)). In addition, administrative actions bythe United States Customs Service do not currently square with federal law governingthe implementation of international treaties concerning the movement of cultural prop-erty. See infra note 181.

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sions"2 has been resolved by well-reasoned statutory requirements 3

that permit the judicial and executive branches of the United Statesgovernment to implement the policies underlying the CPIA withoutusurping the United States' right as a sovereign nation to control per-sons and property within its jurisdiction.24

3.2. Common Law

At the same time, recent judicial opinions, notably DeWeerth v.Baldinger,5 decided in 1987 by the United States Court of Appeals forthe Second Circuit, have shown increasing concern for protecting goodfaith purchasers of artworks obtained through international com-merce.26 DeWeerth, a civil suit brought in federal court under diversityjurisdiction, is of particular importance since it was decided under thelaw of New York, the principal locus of the art trade in the UnitedStates. The DeWeerth court struck a balance between the interests of a

22 See supra note 1.22 See, e.g., CPIA, supra note 17, §§ 302(7)(A), 305, 19 U.S.C. §§ 2602(a)(1),

2604. Adherence to the spirit of the final version of the OPIA, forged after endlesshours of Congressional debate, would in effect vitiate the need for an amendment theNSPA or similar legislation intended to prevent its application to future cases withfacts similar to McClain. See Nafziger, Repose Legislation: A Threat to the Protectionof the World's Cultural Heritage, 17 CAL. W. INT'L L.J. 250 (1987) (criticizing pro-posed federal Cultural Property Repose Act, since defeated, as contrary to balance ofnational and global interests struck by the CPIA) (see H.R. 2389, 99th Cong., 1st Sess.(1985), and S. 1523, 99th Cong., 1st Sess. (1985)). But see A Bill to Amend Sections2314 and 2315 of Title 18, United States Code, Relating to Stolen ArchaeologicalMaterial; to the Committee on the Judiciary, S. 605, 99th Cong., 1st Sess., 131 CONG.REC. S2611-12 (daily ed. March 6, 1985).

24 This right is well established by internationally recognized conflict of law prin-ciples. See, e.g., Note, The Illicit Movement of Art and Artifact, supra note 14, at 68(citing Bassiouni, Reflections on Criminal Jurisdiction in the International Protectionof Cultural Property, 10 SYRACUSE J. INT'L L. & COM. 281, 305-06 (1983)) (briefdiscussion of territoriality theory of jurisdiction, under which "a state formulates andenforces law within its own territory, and will not enforce a foreign or penal law").The choice of United States jurisdictional principles, rather than foreign statutory dec-larations, as guideposts for judicial decisions, allows the United States to enforce aselective import policy with respect to art and antiquities, rather than granting a"blank check" to foreign governments in enforcing their domestic laws and regulationsin United States courts. See generally Note, The Current Status, supra note 1, at 71-79 (discussion of "blank check" and "selective" approaches to import control); see alsoFitzpatrick, supra note 1, at 871 ("Significantly, the Senate committee report on theCultural Property Law [CPIA] states that U.S. policy will not turn on foreign declara-tions of ownership, but on U.S. determinations.").

2- 836 F.2d 103 (2d Cir. 1987), cert. denied, 486 U.S. 1056 (1988).26 Compare DeWeerth, 836 F.2d at 103, with Menzel v. List, 49 Misc. 2d 300,

267 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966), affd and modified per curiam, 28 A.D.2d516, 279 N.Y.S.2d 608 (1967). See also Kunstsammlungen zu Weimar v. Elicofon, 678F.2d 1150 (2d Cir. 1982).

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foreign claimant seeking the return of cultural property27 and the inter-ests of the successful defendants, a bona fide purchaser and the reputa-ble art gallery from which she purchased the disputed piece.28 TheDeWeerth decision brings case law in this area into conformity with theimplicit goal of the CPIA's modifications of the 1970 UNESCO Con-vention29 by promoting stability in art trade transactions occurringwithin the United States."0 Maintaining such commercial stability willallow the United States to remain a viable participant in the interna-tional art market.

4. BACKGROUND

4.1. The Nature of the Art Market

This Comment deals with international commerce in works of art.This concept requires some elaboration, because both "internationalcommerce" and "works of art" are terms seemingly open to limitlessdifferent constructions. Generally, the Comment assumes that interna-tional trade in art consists of transactions, both legitimate and illegiti-mate (notions which are, as discussed below, themselves subject to di-verse interpretations), whose ultimate object is the sale of a given pieceto a private or institutional consumer.

4.1.1. The Notion of "Cultural Property"

The Comment is concerned mainly with the market in fine art,i.e., paintings, sculpture, and graphic works. Other types of importedcultural property, including historic artifacts such as relics, documents,and decorative or utilitarian objects, are likely to be controlled by iden-tical rules and principles, although laws and treaties that contemplatethe disposition of narrowly defined types of cultural materials also ex-

27 The case involved a claim by DeWeerth, a West German national, that anImpressionist painting belonging to her had been stolen from safekeeping in Germanyduring World War II and subsequently resold to the defendant Baldinger, a good faithpurchaser. DeWeerth, 836 F.2d at 104-05. Baldinger, an American citizen, impleadedWildenstein & Co., a New York art gallery from which she had purchased the work in1957. Id. at 104-05. See infra notes 76-154 and accompanying text.

a8 See supra note 11.11 See supra notes 17-20 and accompanying text.30 Compare U.C.C. § 1-102(2) (underlying policy of the Uniform Code, now

adopted in most states of the United States, to promote commerce by furnishing clear,uniform rules governing transactions); see also Note, Title Disputes in the Art Market,supra note 4, at 457 (citing J. WHITE & R. SUMMERS, HANDBOOK OF THE LAWUNDER THE UNIFORM COMMERCIAL CODE 144 (1980) ("One of the principal goals ofthe laws governing the sale of goods is facilitating free transfer of title.").

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ist.3 ' Therefore, the Comment employs "cultural property," "art," andlike terms in a general sense and as virtually interchangeable,3 2 exceptwhere the text specifies a particular category of art or artifact. 3

4.1.2. General Description of Art Market Transactions

Typically, a chain of art market transactions begins with the re-moval or export, subsequent to discovery 4 or purchase, of artworkfrom a country other than the United States. 35 The artwork is thenimported - or smuggled - into the United States, where it may beretained by the importer, sold - privately, through a dealer, or at auc-tion - or otherwise transferred to another party or series of parties. Inthis way the work may enter the possession of a merchant, a private

3 E.g., Treaty of Cooperation Providing for the Recovery and Return of StolenArchaeological, Historical and Cultural Property, July 17, 1970, United States-Mex-ico, art. I, 1(a), 22 U.S.T. 494, T.I.A.S. No. 7088 (bilateral agreement specificallyconcerning pre-Columbian art and artifacts); Regulation of Importation of Pre-Colum-bian Monumental or Architectural Sculpture or Murals, 19 U.S.C. §§ 2091-2095(1976). Although even the broadest legislation usually includes some definitions orstatement of scope, see, e.g., UNESCO Convention, supra note 17, art. I (definition of"cultural property"), the cited examples illustrate United States governmental re-sponses to very specific problems of archaeological pillage. See P. BATOR, supra note 1,at 6-7. See also generally Kimmelman, Indian Art vs. Artifact: Problem of Ambiguity,N.Y. Times, May 1, 1989, at Cll, col. 1 (discussing problem of defining Canadian orAmerican Indian materials in museums as "art, artifacts, or something elsealtogether").

32 In one recent article, Professor Merryman has observed: "The entire questionof the proper definition of cultural property for legal and policy purposes is a large andunruly one .... Works of art and archaeological and ethnological objects surely qualifyunder any definition . . . ." Merryman, Two Ways of Thinking, supra note 2, at 831n.1; cf UNESCO Convention, supra note 17, art. I.

'3 For example, Mayan stelae. UNESCO Convention, supra note 17, art. I.14 "Discovery" may also encompass the unauthorized looting of monuments and

archaeological sites. See generally K. MEYER, THE PLUNDERED PAST (1973); see alsoL. PRoTT & P.J. O'KEEFE, supra note 20, at 4 (scope of terms used in title).

11 While this Comment concentrates on disputes surrounding artworks whichhave at some point been imported into the United States, one must observe that theUnited States, too, is a fertile source of desirable - and marketable - cultural prop-ert, from Native American archaeological treasures to contemporary works by livingartists. These resources must also be considered by legislators and judges in formulatingnational policy to govern the treatment of American art and antiquities. See generallyComment, The Evolution of American Attitudes, supra note 6 (thorough considerationof legislation to preserve domestic cultural property, particularly Native Americanmaterials); Note, The Current Status, supra note 1, at 66 n.68 (citing discussion ofUnited States export controls in Prott, supra note 15, at 333); cf. Visual Artists' RightsAct, S. 1619, 100th Cong., 1st Sess. (1987), 133 CONG. REc. § 11,502 (daily ed. Aug.6, 1987) (statement of Sen. Kennedy: "In our country, as in every other country andcivilization, artists are the recorders,[sic] and preservers of the national spirit. The crea-tive arts are an expression of the character of the Nation - they mirror its accomplish-ments, warn of its failings, and anticipate its future."); see also L. PROTT & P.J.O'KEEFE, supra note 20, at 64-65 (summary of current United States laws intended topreserve indigenous material culture).

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collector, or an institution such as a museum or a university.

4.2.' Art Market Disputes

4.2.1. The Context in Which Claims Arise

Controversy over rightful title to the artwork may arise at anypoint in the transactional chain. Claims to possession of a given objectmay be asserted by private parties or by foreign governments and maybe dealt with through private, diplomatic, administrative, or legal chan-nels. Such claims may be litigated in criminal or civil actions, depend-ing on the factual context of each case. The present discussion will fo-cus on controversies concerning artworks already at the point of entryinto the United States or reposing in United States collections, includ-ing works intended for sale in exchanges governed by United Statesfederal, state, or local laws.

4.2.2. The Concept of National Patrimony

a. Definitional Problems

Behind the difficulty in resolving artwork title disputes lies theelusive definition of "national patrimony." Whether an object is consid-ered by a given nation to be an important part of its cultural heritage,and therefore worthy of legal actions to keep the object in that nation,may be crucial to the United States' designating the object as stolen orwrongfully exported. The status of the work in its country of exportmay thus be decisive in the United States determination of whether theimporter should be penalized or made to disgorge the object.

What constitutes a country's national patrimony is thus a subjec-tive inquiry. It begins in the United States with an examination of theart object's provenance and the claims of the nation or nations wherethe object originated or has resided for some period of time deemedsufficient to create a valid interest in the object. Historically, art-pro-ducing and art-amassing nations have given attention to maintaining orrecovering the artistic products of their own cultures as well as the im-ported aesthetic treasures residing in domestic collections, primarilyduring wartime.86 Public and private attempts to retrieve art lost dur-

" Nafziger, International Penal Aspects of Protecting Cultural Property, 19INT'L LAW. 835, 838-40 (1985) [hereinafter Nafziger, International Penal Aspects];Nafziger, The New International Legal Framework for the Return, Restitution orForfeiture of Cultural Property, 15 N.Y.U. J. INT'L L. & POL. 790, 791 (1983) [here-inafter Nafziger, The New International Legal Framework]; Note, The Illicit Move-ment of Art and Artifact, supra note 14, at 61; Comment, The Evolution of AmericanAttitudes, supra note 6, at 625-26; Note, The Current Status, supra note 1, at 54-57;

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ing wartime continue today as works seized or purloined during WorldWar II surface in the United States. 37 However, art-rich countries haverecently perceived a general and urgent need for protective legislation tomaintain art objects as a cultural legacy. This concern springs partlyfrom a nascent sense of autonomy and ethnic self-determination amongnations which have sought or achieved independence since World War11,38 partly in response to publicity in the past two decades about theongoing, but previously unrecognized or ignored, pillage of archaeologi-cal treasures,39 and partly from a general heightened sensitivity to thevalue and ephemeral nature of cultural property.40

In addition, as one observer has noted, "[tihe political pressure ex-erted on the State Department by these art-rich nations to address thisproblem [destruction of national patrimony] has coincided with an in-creasing U.S. need for Latin American political and economic coopera-tion." '41 The United States' use of "cultural property as a bargainingchip" in the battle against international drug traffic42 has no doubt en-hanced the tendency of art exporting states to view cultural property asa valuable national resource.

As a number of current sources reveal, "[tihe traffic in stolen orsmuggled art, now estimated at more than $1 billion a year, has re-

Comment, International Law in Domestic Forums: The State of the Art, 9 BROOKLYNJ. INT'L L. 179, 179-80 nn.2-4 (1983) [hereinafter Comment, International Law inDomestic Forums].

37 See, e.g., DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir. 1987), cert. denied,486 U.S. 1056 (1988); Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2dCir. 1982); Menzel v. List, 49 Misc. 2d 300, 267 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966),affd and modified per curiam, 28 A.D. 2d 516, 279 N.Y.S.2d 608 (1967). For a veryrecent example, see Honan, Second Manuscript Turns Up in German Hands, N.Y.Times, June 16, 1990, at Al, col. 1; Glueck, Significance of the Works That Vanishedfrom Mine, N.Y. Times, June 15, 1990, at C22, coT. 5; Honan, A Trove of MedievalArt Turns Up in Texas, N.Y. Times, June 14, 1990, Al, col. 3; see also infra note 165(discussing outcome of the resulting dispute over German objects rediscovered inTexas).

38 Stille, Was This Statue Stolen? U.S. Courts Help Protect Art Heritage, Nat'lL.J., Nov. 14, 1988, at 32, col. 1.

" See P. BATOR, supra note 1, at 1-6; K. MEYER, supra note 34; Note, Emerg-ing United States Policy with Regard to the International Movement of National Cul-tural Property, 7 INT'L TRADE L.J. 166, 166 (1982) [hereinafter Note, EmergingUnited States Policy].

40 See UNESCO Convention, supra note 17, preamble. See generally L. PROTTand P.J. O'KEEFE, supra note 34, at 7-12; Note, The Illicit Movement of Art andArtifact, supra note 14, at 58.

41 Note, Emerging United States Policy, supra note 39, at 166.42 Stille, supra note 38, at 32. Stille suggests, to cite one example, that bilateral

agreements between the United States and Mexico, and between the United States andPeru, to curtail commerce in illicitly obtained pre-Columbian art were executed in ex-change for affirmative measures on the parts of those nations to curb the production ofillegal drugs that make their way illicitly across the United States border. Cf. infranote 43 and accompanying text.

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cently become second only to drugs in the world's black-market econ-omy."4 Supplementing this development has been the growing interest,described above,"" of art-rich lands in preserving an intact material rec-ord of their ethnic heritages. In many cases, this interest leads to thepassage of export restrictions, title-vesting statutes, and preservationlaws that define as contraband much of the cultural property formerlyconsidered fair game for art traders.45 Hence, the exponential increasein illegal trafficking in cultural property reflects not just a surge inactivity among art thieves and smugglers, but an expanded concept of"illicit trade."

b. Legal Problems

In any event, the divergence among national policies on whatshould be considered "patrimony" represents'an enormous, and possi-bly insuperable, hurdle in the consistent interpretation and administra-tion of cultural property law. This hurdle exists even where the provi-sions of an applicable document, such as the UNESCO Convention, 46

attempt to clarify that ultimately subjective notion.Still less definitive guidance has existed for courts faced with

3 Stille, supra note 38, at 32; cf. Nafziger, The New International Legal Frame-work, supra note 36 (citing Christian Sci. Monitor, Sept. 22, 1982 (Midwestern &Western Editions), at 19, col. 2). Lyndel Prott has observed:

[T]he publicity surrounding the volume of the art trade, its soaring prices,the aggressive promotion by auction houses and the continual emphasis onthe record-breaking sums reached, have done much to promote culturalproperty as a lucrative field for dishonest activities, and to attract illicitlyacquired goods to the auction and sales rooms of the 'art market' states.

Prott, supra note 15, at 345, quoted in Note, The Illicit Movement of Art and Artifact,supra note 14, at 55.

" Supra notes 38-42 and accompanying text.See generally L. PRoTT and P.J. O'KEEFE, supra note 20, ch. 2; S. WILLIAMS,

supra note 15; INTERNATIONAL COUNCIL OF MUSEUMS, THE PROTECTION OF CUL-TURAL PROPERTY: HANDBOOK OF NATIONAL LEGISLATIONS (B. Burnham ed. 1974).

4' UNESCO Convention, supra note 17, art. 4, offers an enumeration of rathervague categories of property forming "part of the cultural heritage of each State." In-cluded are indigenous works "of importance to the State concerned," id., art. 4(a), and"cultural property received as a gift or purchased legally with the consent of the com-petent authorities of the country of origin of such property." Id., art. 4(e). Clearly,such terms offer little help to authorities dealing with claims to cultural property by aforeign state since the provisions leave the determination of what is "of importance" tothe claimant. The question of which party has superior rights to a given object remainsto be thrashed out by the disputants. Similarly, while the CPIA, supra note 17, refersspecifically to "cultural patrimony," e.g., id., § 303, neither the UNESCO Conventionnor the CPIA defines the term. Rather, requests by state parties for import restrictionson objects forming part of the allegedly endangered cultural patrimony are evaluated bya Cultural Property Advisory Committee on an ad hoc basis, assuming that the prop-erty at issue falls within certain general qualifications set forth in CPIA § 302, 19U.S.C. § 2601. See id., § 306, 19 U.S.C. § 2605. But see infra note 71.

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claims against United States holders of exported cultural property bynations not party to agreements like the UNESCO Convention. Forexample, Italy has been particularly vigorous in asserting claims arisingfrom the export of artworks the government deems part of the Italiancultural patrimony.4 7 Like other European countries with a significantstake in the international art trade, Italy has not adopted the UNESCOConvention,48 but chooses to take unilateral action based on Italian do-mestic law regarding the export of works of art. The threat to a healthyUnited States art trade created by such a nation's claims is vividly illus-trated in the celebrated case of Jeanneret v. Vichey.49

5. THE EXAMPLE OF JEANNERET V. VICHEY

5.1. Facts of the Case

In 1970, the plaintiff Jeanneret, an art dealer and Swiss national,purchased a painting by Matisse in New York City.50 When she

47 P. BATOR, supra note 1, at 17 ("[T]here are persistent complaints, primarily inItaly and England, that the national patrimony is being depleted by the export of arttreasures."). Concerning one possible interpretation of "patrimony," i.e., as nationalcapital, Professor Bator also observes that England considers "imported" treasures -notably the Elgin marbles - as part of its own national patrimony. Id. at 27; cfMerryman, supra note 17. For a description of the selective export controls imple-mented by England, see P. BATOR, supra note 1, at 43-45; see also Kimmelman, TheCase of the Vanishing Art, N.Y. Times, May 14, 1989, § 2-1, at col. 2 (lamenting lossto foreign buyers of the United States' cultural heritage, defined to include foreign-produced works of art residing in United States public collections).

48 Italy, a principal source of cultural riches, participates in the global art marketlargely as a supplier, although a brisk trade in art and antiquities is carried on withinits own borders (the world's second largest auctioneer, Christie's Ltd., for instance,maintains auction rooms in Rome). The major centers of international commerce inworks of art, however, remain France, Switzerland, Great Britain, West Germany, theUnited States, and, increasingly, Japan. Of these nations, only the United States hasbeen willing to participate in multilateral cooperative efforts to limit the internationalblack market in cultural property. See generally Grimes, supra note 19, at 24; Com-ment, The Evolution of American Attitudes, supra note 6, at 633-35 (citing CulturalProperty Treaty Legislation: Hearings on H.R. 3403 Before the Subcomm. on Tradeof the House Comm. on Ways and Means, 96th Cong., 1st Sess. 79 (1979)) (impedi-ments to effectiveness of the UNESCO Convention due to refusal of other art import-ing nations to sign).

" 541 F. Supp. 80 (S.D.N.Y. 1982), rev'd and remanded, 693 F.2d 259 (2d Cir.1982). The complexity of the relevant facts inJeanneret are typical of those surround-ing artworld transactions. Here, a painting by a French artist passed through severalcountries - France, Italy, Switzerland, and the United States - as it changed hands.Over the years the work had been transferred both by inheritance and by private saleand had also entered the public market. See generally Comment, Jeanneret v. Vichey:Evaporating the Cloud, 15 N.Y.U. J. INT'L L. & POL. 999, 1002-04 (1983) [hereinaf-ter Comment, Evaporating the Cloud]; Note, Jeanneret v. Vichey: Sales of IllegallyExported Art under the Uniform Commercial Code, 6 Nw. J. INT'L L. & Bus. 275,282-84 (1984) [hereinafter Note, Sales of Illegally Exported Art].

10 Note, Sales of Illegally Exported Art, supra note 49, at 282-83. The painting,

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learned during a 1974 visit to Italy5" that the painting, Portrait surfond jaune,5 2 had probably been exported from Italy in contraventionof Italian export laws, she attempted unsuccessfully to rescind the sale.She then sued the seller, Madame Vichey, for breach of warranty oftitle. Jeanneret claimed that she could neither "sell the painting nor'show it" in the legitimate art market.5" Following the commencementof her action in the United States District Court for the Southern Dis-trict of New York, the Italian government brought criminal chargesagainst Vichey and her husband for illegally exporting the portrait.54

5.2. The Jeanneret Decision

In attempting to resolve the breach of warranty claim, the UnitedStates courts focused on the matter of title without exploring other is-sues of important practical consequence to Jeanneret as a dealer and,indeed, to the United States art market in general. As one commentatorhas observed:

The broader underlying issue [raised by Jeanneret] iswhether any exporting nation, by threatening actual or po-tential owners with fines or confiscation, can cloud the titleto or impair the marketability of a work exported withoutthe approval of the exporting nation. Neither the trial northe appellate courts satisfactorily analyzed or answered these

Portrait sur fond jaune, had been imported into Italy in 1951 by the father of theseller-defendant, Madame Vichey, who in turn exported the work and brought it toNew York soon after inheriting it in 1970. Id. at 282. Under circumstances unclearfrom the record, the painting was transported initially from Italy to Switzerland, thenthe Vicheys imported it into the United States. Id. at 283.

"I SeeJeanneret, 693 F.2d 259, Joint Appendix at 91a, cited in Comment, Evap-orating the Cloud, supra note 49, at 1003 n.36,

2 The French title of the picture translates to "Portrait on Yellow Background."53 Jeanneret, 693 F.2d at 261. Although before bringing suit Jeanneret had re-

jected as insufficient several offers from persons interested in buying the Matisse, id. at260, at trial she introduced compelling testimonial evidence from revered dealers andauctioneers to demonstrate the virtual impossibility of selling the disputed Matisse to areputable art merchant. Id. at 263.

5" Jeanneret, 541 F. Supp. at 83 n.5. The charges stemmed from the Vicheys'having brought the painting out of Italy without seeking formal permission from thatcountry's government; in 1979 the Italian Minister of Culture added Portrait surfondjaune to its list of artworks of particular importance to Italy's national patrimony (thereasoning behind this characterization is unclear; see Comment, Evaporating theCloud, supra note 49, at 1003 n.31, 1005 n.47; Note, Sales of Illegally Exported Art,supra note 49, at 286 n.82), rendering the exporters liable under Italy's jurisdiction tothe government. See Comment, Evaporating the Cloud, supra note 49, at 1007-12(discussion of Italian cultural property laws); Note, Sales of Illegally Exported Art,supra note 49, at 284-85 nn.74-79.

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questions.55

The district court in Jeanneret did not think it necessary to reachthe question of validity as to the Italian claim, 6 holding that the mereassertion of such a claim breached the seller's implied warranty of titleunder UCC § 2-312.5

7 However, the court of appeals conditioned afinal determination of whether the Italian claim 58 "clouded" Jean-neret's title on her ability to establish that the export had indeed vio-lated the letter of the applicable Italian law. 59 This factual question inturn depended upon the painting's age, the issue to be tried onremand. o

5.3. Implications of Jeanneret

Looking beyond the narrow holding in Jeanneret, both the appel-

'5 Note, Sales of Illegally Exported Art, supra note 49, at 278; accord Comment,Evaporating the Cloud, supra note 49, at 999 ("[Tjhe Court of Appeals effectivelysidestepped the central legal issue the case has raised. That issue is whether any viola-tion of Italian export laws should constitute a 'substantial cloud on title' of the paintingand be a breach of implied warranty of title." (footnote omitted)). The latter observerargues cogently that for reasons of policy and law, in a case like Jeanneret, breach ofwarranty of title under Uniform Commercial Code § 2-312 as adopted in New Yorkshould not lie; by effectively granting a "blank check" to art exporting countries, such aholding would "set a dangerous and problematic precedent." Id. at 1019.

5 Even under Italian law the Italian government's claim, if any, would be en-forceable only against the exporters themselves (here, the Vicheys), not against subse-quent good-faith purchasers. Comment, Evaporating the Cloud, supra note 49, at1010, 1016. Moreover, Italy would probably recognize that Jeanneret had acquiredgood title to the Matisse regardless of the Vicheys' unlawful export, and in any eventthe painting would probably not be subject to confiscation. Id. at 1009-12.

51 Jeanneret, 541 F. Supp. at 83. Significantly, however, the Italian governmentdid not claim ownership of the Matisse, or that Madame Vichey's title to it was sus-pect, only that the Vicheys should be penalized for illegally removing it from the coun-try. See Jeanneret, 678 F.2d at 266; see also Comment, Evaporating the Cloud, supranote 49, at 1010.

58 See supra note 54." The litigants introduced some question as to which of two Italian laws were

applicable to the Matisse as cultural property.Under a 1913 law, the painting, if at least fifty years old, would have been lawfullyexported only if the Vicheys had paid a fee to obtain a government permit (the govern-ment might also have had the right to purchase the work rather than allowing itsremoval). See Jeanneret, 693 F.2d at 262; Note, Sales of Illegally Exported Art, supranote 49, at 289-90; Comment, Evaporating the Cloud, supra note 49, at 1007-08. If a1939 law controlled, the Vicheys could be subject to the Italian government's claims,but only if the painting were, again, fifty years old at the time of export. SeeJeanneret,541 F. Supp. at 83; Comment, Evaporating the Cloud, supra note 49, at 1008-11.Hence, the court of appeals remanded the case for determination of the factual issue ofthe painting's age, since the exact year Matisse executed Portrait sur fond jaune re-mained in dispute. Jeanneret, 693 F.2d at 269.

'0 Jeanneret, 693 F.2d 259. No further litigation is reported in the Jeanneretcase. Apparently the parties settled privately after the court of appeals' decision.

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late court opinion 6' and subsequent analyses of the case62 reveal a gen-eral consensus that a mere export violation should not constitute abreach of warranty of title in the sale of art." Moreover, the court ofappeals, expressing skepticism as to the Italian government's right toclaim a twentieth-century French painting as part of its national patri-mony, 4 demonstrated sensitivity to the vulnerability of the artmerchant - as well as the purchaser - in the face of even tenuousclaims to artworks by foreign governments."5 Indeed, Jeanneret mighthave succeeded in obtaining a judgment had she sued the Vicheys forbreach of warranty of merchantability under the Uniform CommercialCode.66

61 Jeanneret, 693 F.2d at 266.

62 E.g. Note, Sales of Illegally Exported Art, supra note 49, at 279; Comment,Evaporating the Cloud, supra note 49, at 1019.

11 See Note, Title Disputes in the Art Market, supra note 4, at 443 n.4 (whethertransfer of artwork exported in violation of foreign law constitutes breach of impliedwarranty of title under U.C.C. § 2-312 remains an open question; effect on such claimsof United States' adoption of UNESCO Convention still remains to be tested).

14 The court questioned whether Portrait sur fond jaune, a "painting by a pro-lific French post-impressionist master ... not claimed to be an outstanding master-piece," constituted the "tremendous loss to the national heritage" claimed by the Italiangovernment. Jeanneret, 693 F.2d at 263-64 n.6. Furthermore, a recent commentatorobserved that the Matisse apparently escaped official notice as being a national treasurewhen the Italian government conducted a thorough inventory of the collection of Mad-ame Vichey's father in 1969. Comment, Evaporating the Cloud, supra note 49, at1005 n.47; cf. P. BATOR, supra note 1, at 17 ("In my opinion the illegal export as suchof [modern-era European paintings and sculpture] does not, in itself, constitute a seri-ous problem, even though there are persistent complaints [from Italy]"; however, Italyis justified in complaining of the export of antiquities and archaeological materials).

6" Although uncertain that Jeanneret's legal claim for breach of warranty of titlewould ultimately succeed, the court of appeals sympathized with her predicament inowning a painting she could not, according to the expert testimony at trial and briefsfrom several amid curiae, sell through legitimate art market channels because of ques-tions surrounding the work's provenance. See Note, Sales of Illegally Exported Art,supra note 49, at 296-97 (citing Jeanneret, 693 F.2d at 268). Her injury represented athwarting of the basic policy of promoting commerce which underlies the U.C.C. Note,Sales of Illegally Exported Art, supra note 49, at 297 n.163.

66 U.C.C. § 2-314. For a thorough examination of Jeanneret's possible avenues inseeking redress under the U.C.C. for her injuries through having received an unmar-ketable painting, see Note, Sales of Illegally Exported Art, supra note 49; cf. Note,Title Disputes in the Art Market, supra note 4, at 445 (implicit duties in some jurisdic-tions require that art dealers investigate title to paintings before making purchase).Apparently Jeanneret did not ask to examine the painting's export papers or otherdocumentation of provenance. Comment, Evaporating the Cloud, supra note 49, at1012. Once the Italian government's claim was made known, however, neither she norother professionals in the trade wished to handle the Matisse. See supra note 53; seealso Note, The Current Status, supra note 1, at 61 n.56 (discussing application of theU.C.C.'s warranty provisions to art market transactions).

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6. STATE OF THE LAW AFTER JEANNERET

The Jeanneret court's de facto endorsement of the common lawprinciple that transgressions of foreign export regulations do not affectthe title of a good-faith purchaser in the United States,67 and its consid-eration of the related merchantability problem, are consistent with thepolicy embodied in the CPIA.68 The OPIA attempts to limit the class ofproperty subject to foreign claims and thereby ensure fair notice to im-porters of what materials they may deal in without danger of legal lia-bility.69 Indeed, because the stability of the United States art market as

6 p. BATOR, supra note 1, at 11; S. WILLIAMS, supra note 15, at 106-08. Profes-

sor Bator sets forth in his study the oft-invoked statement of "the fundamental generalrule" (thrown into some question by the McClain cases, supra note 1):

The fact that an art object has been illegally exported does not in itself barit from lawful importation into the United States, and illegal export doesnot itself render the importer (or one who took from him) in any wayactionable in a U.S. court; the possession of an art object cannot be law-fully disturbed in the United States solely because it was illegally exportedfrom another country.

P. BATOR, supra note 1, at 11. On the effect of foreign export restrictions on theownership of cultural property, the court in United States v. McClain, 545 F.2d 988,1002-03 (5th Cir. 1977), noted:

[E]xcept for [their] effect on jurisdiction, restrictions on exportation arejust like any other police power restrictions. They do not create "owner-ship" in the state. The state comes to own property only when it acquiressuch property in the general manner by which private persons come toown property, or when it declares itself the owner; the declaration is anattribute of sovereignty.

Id.; see also Merryman, The Protection of Artistic National Patrimony Against Pil-laging and Theft, in DuBOFF, ART LAW, DOMESTIC AND INTERNATIONAL 245(1975) at 239-41, 244, cited in McClain, 545 F.2d at 1003 n.32 (discussion of Italianlaw).

68 Italy is not a party to the UNESCO Convention. See supra note 48 and accom-panying text. The procedures for controlling the movement of cultural property out-lined by the Convention and the implementing legislation therefore do not apply toclaims and requests by the Italian government. Nevertheless, the judicial-and adminis-trative treatment (and perhaps also the informal resolution) of title disputes involvingartworks exported from Italy and countries like it will be informed by the substantiveprovisions of statutes and treaties adopted by the United States. See generallyUNESCO Convention, supra note 17.

69 Section 305 of the CPIA, for example, provides that, in order to obtain aUnited States import embargo on "archaeological and ethnological" materials (seeCPIA, supra note 17, § 301, 19 U.S.C. § 2601 for a narrow definition of these terms),such materials must be placed on a list to be promulgated by the Secretary of theTreasury. The Act states in part:

The Secretary may list such material by type or other appropriate classifi-cation, but each listing made under this section shall be sufficiently spe-cific and precise to insure that (1) the import restrictions under section307 are applied only to the archaeological and ethnological material cov-ered by the agreement or emergency action; and (2) fair notice is given toimporters and other persons as to what material is subject to suchrestrictions.

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a whole depends not only on the buyer's ability to secure quiet title to awork, but also on his confidence in entering a transaction forpurchase,70 protecting actual merchantability (rather than legally en-forceable rights alone) must be a central policy goal in establishing cul-tural property. The mere possibility suggested by the Jeanneret casethat a United States court would enforce any Italian claims - whetherdirected against the importer alone or against subsequent purchasers ofa work of art - would certainly impede both the flow of art into theUnited States and the legitimate sale (or exhibition)7' of importedworks. Art dealers and lay persons alike may be disinclined to engagein imports and purchase transactions72 within the United States' juris-diction absent the positive assurance of legal authority protecting themagainst such claims.

CPIA, supra note 17, § 305, 19 U.S.C. 2604 (emphasis added). Even in the case ofstolen cultural property, under § 308 the material must be documented as taken afterthe effective date of the CPIA (or the effective adoption of the convention by the com-plaining state, whichever is later) - a provision that would have obviated the questionsinJeanneret as to the applicable Italian law and the painting's age - from a "museumor . . . monument or similar institution." CPIA, supra note 17, § 308, 19 U.S.C. §2607.

"0 See supra note 66.

" See CPIA, supra note 17, § 312, 19 U.S.C. § 2611 (exemption of materialswithin the Act which are on temporary display and of works reposing in museums andlike institutions, under specified conditions); see also 22 U.S.C. § 2459 (1965) (act torender immune from seizure under judicial process certain objects of cultural signifi-cance imported into the United States for temporary display or exhibition, and forother purposes).

72 Such transactions would include negotiations and other activities directed to-ward the sale of art, if not the actual contract formation or transfer of property. Thecourt in Jeanneret applied New York law, rather than Swiss or Italian law, becausethe negotiations between Jeanneret and the Vicheys to sell the Matisse had taken placein New York. The actual payment and delivery of the painting occurred in Switzer-land. SeeJeanneret, 693 F.2d at 266. Thus every phase of the art business in Americacan be affected - and depressed - by unfavorable foreign law regarding culturalproperty. See Note, Sales of Illegally Exported Art, supra note 49, at 281 nn.45-46(citing Brief of Amici Curiae, Jeanneret, 693 F.2d at 259) (commercial worthlessnessof artworks subject to third-party claims based on foreign law).

For a full treatment of the conflict of laws questions raised by Jeanneret (and anargument that the court erred in failing to look to the law of Switzerland, the lex situsof the transfer), see Note, Sales of Illegally Exported Art, supra note 49, at 299-307;cf Comment, International Law in Domestic Forums, supra note 36 (examination ofKunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982), advocating amonistic approach to application of laws in international disputes and calling for thedevelopment of an international law applicable to such questions); see also Winkworthv. Christie Manson & Woods Ltd., [1980] 1 Ch. 496, [1980] 2 W.L.R. 937, [1980] 1All E.R. 1121 (1979) (application of lex situs in case of disputed title to art which wasstolen, exported, and then sold in another country).

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7. THE CASE OF DEWEERTH V. BALDINGER

Until the DeWeerth case 3 was adjudicated in 1987, Jeanneret re-mained the valid, if somewhat uncertain, statement of the common lawgoverning private parties' 4 disputes over the legal status of artworktransferred via international trade (at least in New York, unquestion-ably the art market capital of the United States). Jeanneret highlights anumber of the major themes in formulating law concerning the interna-tional movement of cultural property:76 the riddle of what constitutesnational patrimony;76 the difficulties in choice of law and in interpreta-

11 DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir. 1987), cert. denied, 486 U.S.1056 (1988).

7" Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d 1150 (2d Cir. 1982), animportant and complex case brought in the Eastern District of New York (536 F.Supp. 829 (E.D.N.Y. 1981)) and decided on appeal by the Second Circuit the sameyear as Jeanneret, involved a claim by a German Democratic Republic state museumthat a pair of Duerer portrait paintings, property of the German government, had beenstolen during World War II. The museum sought to recover the paintings fromElicofon, an American lawyer who claimed he had purchased them from an ex-UnitedStates serviceman. Kohn, $6 Million Art Held Property of East Germany, N.Y.L.J.,May 6, 1982, at 1. Elicofon thus involved a direct action by a foreign governmentagainst a United States citizen, unlike Jeanneret, where the Italian government was athird party claimant who did not enter the case, and DeWeerth, where all the litigantswere private parties (although the plaintiff was a West German national, the Germangovernment laid no claim to the disputed artwork).

Nonetheless, Elicofon implicates many of the crucial problems raised by Jean-neret, including the role of purchaser and seller in investigating and documenting prov-enance and vexed conflict of laws questions. See generally Comment, InternationalLaw in Domestic Forums, supra note 36. Moreover, unlike Jeanneret, both Elicofonand DeWeerth were actions to recover artworks allegedly stolen during the SecondWorld War. DeWeerth, as discussed below, altered the previous tendency of New Yorklaw to favor plaintiffs in such disputes, destroying the finality of commercial transac-tions involving cultural property and undercutting the foundation of the New York arttrade. Compare DelVeerth, 836 F.2d 103, with Elicofon, 678 F.2d 1150, and Menzel v.List, 49 Misc. 2d 300, 367 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966), affd and modified percuriam, 28 A.D.2d 516, 279 N.Y.S.2d 608 (1967). See generally Note, Title Disputesin the Art Market, supra note 4.

Since the writing of this Comment, the New York Court of Appeals has elabo-ratpd further on the issues raised in DeWeerth; see infra note 125.

" "The issues raised by Jeanneret are simply an extension of the issues raisedduring the debates over McClain and the UNESCO Convention." Note, Sales of Ille-gally Exported Art, supra note 49, at 317; cf. McAlee, From the Boston Raphael,supra note 1, at 591-94 (possibility of art-related civil suits brought under the McClaindoctrine); P. BATOR, supra note 1, at 75-78 (possible consequences of McClain on civillitigation arising from international art transactions).

78 The terms and legislative history of the CPIA, supra note 46, do not offer adefinitive statement of what should be considered "national patrimony" but give someinsight into the problem unavailable during the pendency of Jeanneret. Congresswished the CPIA to encompass works with "characteristics which distinguish themfrom other objects in the same category providing particular insights into the originsand history of a people." S. REP. No. 564, 97th Cong., 2d Sess. 24, 25 (1982), quotedin Fitzpatrick, supra note 1, at 872 n.51.

Nafziger has suggested a "triage" approach to determining how great a part of the

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tion of foreign laws;7 the importance of documenting provenance; theresponsibilities of owners, dealers, and purchasers in investigating titleto the artwork;78 and the attendant evidentiary problems.79 DeWeerth

claimant nation's patrimony is represented by a particular object, and how to treat thatobject accordingly. See Nafziger, An Anthro-Apology for Managing the InternationalFlow of Cultural Property, 4 Hous. J. INT'L L. 189, 196-98 (1982) (summarized inNote, The Current Status, supra note 1, at 73-74 n.121).

7' In addition to having to decide which country's law to apply to a dispute - orto aspects of it, see Comment, International Law in Domestic Forums, supra note 36,at 191-97 (separate judicial consideration of the national interests implicated by eachissue in Elicofon before choosing and applying law) - the court in cases likeJeanneretand Elicofon may find confusion, even among the foreign jurisdiction's own experts, asto the correct interpretation of applicable statutes. The dispute in Jeanneret overwhether the 1913 statute was superseded by a 1939 law enacted during Mussolini'sregime illustrates this potential difficulty, not unlikely in the many nations whose gov-ernments have been unstable during the past century. Cf Comment, InternationalLaw in Domestic Forums, supra note 36 (complex litigation surrounding the Elicofoncase reflects numerous changes in defining German territorial and political boundaries,leading to conflict as to applicable law and even question of standing to sue for recoveryof national treasure); United States v. McClain, 545 F.2d at 997-1000, United States v.McClain, 593 F.2d at 666-71 (question as to whether controlling Mexican law, to beapplied by United States court, was embodied in statute of 1897, of 1934, or of 1972,and further conflict even among Mexican authorities as to the correct interpretation ofapplicable law); Socialist Republic of Rumania v. Wildenstein & Co., 85 Civ. 2435(DNE) (S.D.N.Y. 1984); Socialist Republic of Rumania v. Kimbell Art Foundation,No. CA4 84 176K (N.D. Tex. 1984) (suit by the former government of Rumaniabased on sale of El Greco painting by Rumania's then-King, claiming transfer voidbecause title to property rightfully vested in the people of Rumania),,cited in Malaro,The Museum's Perspective, in ART LAW 847, 854-55 (PLI 1988).

On the difficulty of enforcing penal sanctions prescribed under international cul-tural property agreements, see generally Note, The Illicit Movement of Art and Arti-fact, supra note 14, at 68-69; Nafziger, International Penal Aspects, supra note 36;see also Fitzpatrick, supra note 1, at 873-74 (problems of legal interpretation faced byUnited States Customs in attempts to enforce foreign claims on cultural property).

78 See generally Note, The Illicit Movement of Art and Artifact, supra note 14, at71-74 (failure of art dealers, auctioneers, and museums to conduct diligent provenanceinvestigations may require legal regulation of the art trade to discourage black marketin cultural property); Note, Sales of Illegally Exported Art, supra note 49, at 281-82(failure to document provenance breaks with current usage of the art trade, renderingart unmarketable despite "legal non-consequences" of illegal exportation; cure for un-marketability lies in protective amendments to U.C.C. §§ 2-312, 2-314); Note, TitleDisputes in the Art Market, supra note 4, at 444-50 (prerequisite of investigation oftitle to artworks before becoming good-faith purchaser under the U.C.C. would deterillicit trade in art); Comment, The Recovery of Stolen Art, supra note 4, at 1149-57(application of so-called "discovery rule" in cases for replevin of stolen artworks wouldpromote salutary goal of "purchases which result from careful examination of a posses-sor's right to sell").

" SeeJeanneret, 693 F.2d at 263 (conflicting evidence as to proper application ofItalian law); id. at 263-64, 269 (conflicting evidence as to date of painting's execution);cf McClain, 545 F.2d at 997-1000, McClain, 593 F.2d at 666-71 (conflicting evidence,including difficulty in translating statutes written in Spanish and credibility of experttestimony, as to proper application of Mexican laws dating back to 1897); see also, e.g.,McAlee, From the Boston Raphael, supra note 1, at 587-89 (general discussion ofprosecution's problems in demonstrating the National Stolen Property Act's scienterrequirement has been met; specifically, in showing defendants in McClain-type case

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also reflects upon some of these themes in the context of an action torecover a painting stolen from Germany during World War II.

7.1. Facts of DeWeerth

The factual background of the DeWeerth case closely resemblesthat of Kunstsammlungen zu Weimar v. Elicofon, in which a pair ofDuerer paintings, owned by a state museum, disappeared from theGerman castle in which they were stored for safekeeping during thepost-World War II Allied occupation."0 Not until 1966 were the Duer-ers that were discovered in the collection of a New York lawyer,"' thedefendant in the litigation to recover the paintings, considered nationaltreasures.8 2 In DeWeerth, the owner of a valuable painting by Monethad sent the work in 1943 to her sister, who lived in a castle in South-ern Germany, for safekeeping. 3 Following occupation of the castle in1945 by American soldiers, DeWeerth's sister found that the Monethad disappeared from the wall where she had hung it.8 4

After learning that the painting was missing, DeWeerth made sev-eral attempts over the next twelve years to recover it. She filed a reportof loss with the post-war military government in 1946; she inquired ofher lawyer in 1948 about the possibility of recovery; and in 1955 shemade a single communication to an art history professor asking him toinvestigate the Monet's present location. Finally, in 1957 DeWeerthincluded the canvas in a list submitted to the West German federalbureau of investigation of artworks she had lost during the war. 5

However, neither DeWeerth nor those she contacted found the picture,

knew their actions violated obscure foreign title-vesting statutes); cf. U.S. CUSTOMSSERVICE, SEIZURE AND DETENTION OF PRE-COLUMBIAN ARTIFACTS, POLICIES &PROCEDURES MANUAL, Supp. No. 3280-01, Oct. 5, 1982, at 3, quoted in Nafziger,The New International Legal Framework, supra note 36, at 794 n.26.

A more recent controversy involves a claim by the Italian government that a statuepurchased by the J. Paul Getty Museum in Malibu, California was stolen from anillicit archaeological excavation in Sicily. Here, too, evidentiary questions arise. Al-though the dispute has not yet reached the courts, representatives of the Italian govern-ment will need to prove that the statue was unearthed within its jurisdiction, and prob-ably that, if so, the exporters (and perhaps subsequent links in the chain ofinternational art market transactions) were aware of the illegality of their actions. SeeStille, The Getty's Aphrodite: Fruit of an Illegal Dig?, Nat'l L.J., Nov. 14, 1988, at33.

80 Kunstsammlungen zu Weimar v. Elicofon, 536 F. Supp. 829, 831 (E.D.N.Y.1981). Albrecht Duerer was a renowned painter and graphic artist of sixteenth-centuryGermany.

81 See supra note 74.82 Id."' DeWeerth v. Baldinger, 836 F.2d 103, 105 (2d Cir. 1987).84 Id.85 Id.

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and she took no further steps.8 6

Eventually, in 1981, a relative of DeWeerth related the tale of themissing Monet to DeWeerth's nephew, Peter von der Heydt.17 He lo-cated the painting, Champs de Bl a Vgtheuil,88 in the standard Cata-logue Raisonng89 of Monet's work and discovered that DeWeerth'scanvas had been purchased from a Swiss art dealer and sold to a pri-vate collectorby the New York art gallery Wildenstein & Co.9° WhenWildenstein refused to divulge the identity of the private collector, agood-faith purchaser, 9 DeWeerth was obliged to secure a court ordercompelling disclosure92 - a vivid illustration of the secretive nature ofeven legitimate art market transactions.

7.2. The DeWeerth Litigation

Following issuance of the order in late 1982, DeWeerth contactedthe collector, Edith Marks Baldinger, and demanded the return ofChamps de Blb.93 Baldinger, an American citizen94 who had kept thepainting in her New York City apartment since 1957,11 refused in Feb-ruary 1983 to return the Monet. 6 Uater that month, DeWeerth suedBaldinger in the Southern District of New York, seeking recovery of

88 Id.

87 Id.88 The painting's French title means "Wheatfield in Vetheuil."89 The catalogue raisonn of a given artist's work generally contains information

about every known piece by that artist. The information usually includes a physicaldescription (and an illustration) of an object, say, a painting, as well as whatever datathe author has gleaned regarding the painting's provenance, exhibition history, andbibliographic references. In many cases, scholars and art trade professionals universallyrefer to a celebrated artist's works using the numbers assigned each work in a particu-lar catalogue raisonn . The catalogue becomes the standard reference as to that artist.Daniel Wildenstein's multi-volume Catalogue Raisonn of the art of Claude Monet, inwhich DeWeerth's nephew looked up her painting, is such an opus. See DeWeerth, 836F.2d at 112.

The author of the Catalogue Raisonnb, Daniel Wildenstein, is also the chief pro-prietor of the art gallery bearing his name. Historically, this century-old concern hasfrequently dealt - and continues to deal - in paintings by Monet and other Impres-sionist masters. Therefore, the apparent coincidence of DeWeerth's picture havingpassed through Wildenstein's hands is not surprising.

o DeWeerth, 836 F.2d at 105.91 The parties in DeWeerth stipulated that Edith Baldinger had "purchased [the

disputed Monet] for value, in good faith, and without knowledge of any adverse claim."Id.

92 Id. at 105-06.93 Id. at 106.

'Id. at 104." Id. at 105. While she possessed the work Baldinger displayed it publicly twice,

both times in New York City, for very short durations.96 Id. at 106.

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the painting.9 The district judge concluded that "DeWeerth had supe-rior title and that the action was timely as she had exercised reasonablediligence in finding the painting. ' 98 Baldinger appealed the decision tothe Second Circuit, which reversed after ruling that DeWeerth's suitwas time-barred under New York's statute of limitations. 99

7.3. Policy Import of the DeWeerth Decision

The closing sentences of the court's opinion suggest the policy im-port of the Second Circuit's ruling:

To require a good-faith purchaser who has owned a paintingfor 30 years to defend under these circumstances would beunjust. New York law avoids this injustice by requiring aproperty owner to use reasonable diligence in locating hisproperty. In this case, DeWeerth failed to meet that burden.Accordingly, the judgment of the District Court isreversed. o0

Although the appellate court's reversal rested on the specific facts ofDeWeerth,'0 ' the decision represented the latest stage in the evolution ofNew York law and offers greater protection than ever before to thefinality of legitimate art purchases and to the stability of the art marketas well. Examining DeWeerth in light of its predecessors reveals anemerging judicial sensitivity to such concerns. This trend in turn echoesthe increasing conservatism of federal law regarding title claims againstcultural property sold or residing in the United States.

8. ANALYSIS OF DEWEERTH

8.1. Choice of Law: Preference for Domestic over Foreign

The first question faced by the DeWeerth court was which law toapply, that of Germany, where the alleged theft occurred (and thecause of action thus accrued)'0 2 or that of New York, where the paint-ing was sold to Baldinger. In Elicofon, 03 the court had also faced a

97 DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y. 1987)." DeWeerth, 836 F.2d at 106." Id. at 112.100 Id.101 "Where, as here, the issue is the application of a legal standard - 'reasonable

diligence' - to a set of facts, review is de novo." Id. at 110.102 For a thorough treatment of the accrual concept in statutes of limitations, with

special reference to cases involving stolen art, see Comment, The Recovery of StolenArt, supra note 4, at 1128-32.

103 See supra note 74 and accompanying text.

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choice between United States and German law. Elicofon, the'purchaser,argued that German law should apply and raised as a defense the Ger-man doctrine of Ersitzung, or repose." ' After considering the legal in-terests of both countries, 105 the circuit court applied New York's limita-tions law, holding that because the disputed property had beentransferred to the defendant in New York and the painting had beenthere for over thirty years, New York's interest outweighed Ger-many's.106 Interestingly, the court in Jeanneret, also decided in 1982,applied New York law although Switzerland was the lex situs of theactual transfer. 07 The rationale behind the Jeanneret court's choicewas that the parties had reached an oral agreement for the sale in NewYork.108 New York courts even before DeWeerth thus seemed eager toapply domestic law to disputes surrounding cultural property. 0°

Presumably, domestic law is more apt to favor United States inter-

104 Kunstsammlungen zu Weimar v. Elicofon, 536 F. Supp. 829, 845 (E.D.N.Y.1981); see Comment, International Law in Domestic Forums, supra note 36, at 195n.99.

105 Comment, International Law in Domestic Forums, supra note 36, at 195-96.108 Elicofon, 678 F.2d at 1160; see also Comment, International Law in Domestic

Forums, supra note 36, at 196 n.101 and accompanying text.10 See supra note 72. Although Jeanneret involved a breach of warranty claim

rather than suit for recovery of a stolen work as in DeWeerth and Elicofon, in each casethe Second Circuit was obliged to consider domestic policy regarding the application offoreign laws before choosing to apply United States (state) law, as the court did in allthree instances.

108 The district court and the appellate court agreed that, since the issue inJean-neret was that of good title, the applicable law was that of the nation in which thecontract was made. Comment, Evaporating the Cloud, supra note 49, at 1012 n. 90.However, one commentator has asserted that each court's approach contravened the"conflict of laws principle that the lex situs of the cultural property at the time oftransfer determines whether an innocent purchaser has acquired a valid title from thetransferor." Note, Sales of Illegally Exported Art, supra note 49, at 301 (emphasisadded). Moreover, "New York's choice of law dictates that questions relating to thevalidity of a transfer of personal property are governed by the law of the state wherethe property is located at the time of the alleged transfer." Jeanneret, 693 F.2d at 266,quoted in id. at 304. Thus the courts should have treated the determination of lex situsas a question of fact before reaching the merits of the case, rather than accepting theparties' assumption that New York law should control. Note, Sales of Illegally Ex-ported Art, supra note 49, at 304.

109 The often-cited case of Menzel v. List may be regarded as first in the line ofproceedings to recover lost artworks through courts seated in New York. The plaintiffin Menzel brought an action in state court against the good-faith purchaser of a paint-ing plaintiff had lost during World War II. 49 Misc. 2d 300, 302, 267 N.Y.S. 2d 804,807 (Sup. Ct. 1966). The court applied New York law in deciding the merits of thecase, rejecting the defendant's contention that Menzel's suit was barred by the statute oflimitations. Id. at 304-05, 267 N.Y.S. 2d at 809.

Because the exercise of diversity jurisdiction had brought DeWeerth, like Elicofonand Jeanneret, to the Second Circuit, New York state law controlled. DeWeerth, 836F.2d at 106 (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487 (1941)).Thus Menzel, to the extent that it had not been superseded by later decisions, repre-sented mandatory authority on issues including choice of law.

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ests, although as seen in McClain"l0 and in Jeanneret,' this presump-tion has not always held true in cases dealing with the internationalmovement of cultural property. However, the seemingly anomalous re-sults reached in cases like McClain and Jeanneret may be because ofthe operation of law at two levels: first, the overarching claim (traffick-ing in stolen property in McClain, breach of warranty of title in Jean-neret), and second, the underlying allegation of a "wrong" defined byforeign law (e.g., the supposed "theft" in McClain and the export vio-lation in Jeanneret).

In a case like DeWeerth, only one level of legal wrong is at issue.Because the parties in DeWeerth assumed that the Monet had probablybeen stolen in the traditional sense.. 2 from its rightful owner, the issueof conflicts of law played little role in the decision. The relative sim-plicity of the legal claim in such a case therefore highlights the out-come-determinative role of the controlling law. Resolving this type ofdispute in accordance with United States law, rather than foreign doc-trines, gives the court much greater freedom to shape policy; the malle-able nature of United States law (and common law in general) allowsthe court to mold it to serve domestic interests.

8.2. Benefit to Commerce in New York Statute of Limitations Law

Looking to New York law in the first instance then, the DeWeerthcourt observed that the prevailing rule dictated .hat New York's statuteof limitations be applied to actions accruing within the state, while ac-tions accruing outside New York might be subject to a "borrowed" lim-itations period.' In any case, the borrowed period would apply only ifit was shorter than the New York prescription of three years." 4

This "borrowing" rule, though certainly developed outside the art-market context of DeWeerth, afforded the benefits of sound commercialpolicy to the defendant-purchaser in that case. Baldinger was a citizenof New York and had acquired title to the disputed Monet in a trans-action occurring in New York. Either circumstance would have allowedher to be sued in a New York court. 15 There she would be granted thesame degree of repose from claims against her title to the Monetwhether the "cause of action" had technically arisen in New York or in


... Supra notes 49-72, and accompanying text.111 Cf supra note 1.113 DeWeerth, 836 F.2d at 106.114 Id.

" See 28 U.S.C. § 1332 (1982) (granting diversity jurisdiction to federal courts).

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another jurisdiction." 6 As DeWeerth illustrates, New York's limitationslaw adopts a flexible approach likely to protect those who do busi-ness-including the purchase and sale of art-in New York., 17

8.3. Extension of the Demand and Refusal Rule Regarding Accrual

The DeWeerth court thus determined that, whether the cause ofaction had accrued in New York or in Germany, DeWeerth's suitwould be barred if not brought within three years of that accrual.1 "The next issue for the court to determine was when DeWeerth's causeof action had accrued, or when she had achieved standing to bring suitfor replevin of the missing Monet. While the applicable New Yorkstatute 19 specifies three years as the time limit for bringing such ac-tions, the presence of the events necessary to do so is largely a questionfor judicial discretion.1 20

Under the "demand and refusal" rule of Menzel v. List,1 21 courtsapplying New York law computed the period of limitations in actionsto recover stolen property (and, specifically, works of art) not from themoment of the alleged theft, but from the time the former owner de-manded return and the current owner refused.1 1

2 The requirement had

18 See infra notes 118-39 and accompanying text (discussing DeWeerth court'streatment of concept of accrual); see also DeWeerth, 836 F.2d at 106.

7 In the world of commerce and trade, [statutes of limitations on actions forreplevin of personal property] provide stability by assuring that those who have dealt ingood faith with property will be made secure in their possession after a certain periodof time. In this way the statutes reduce uncertainty and promote free trade of goods.Comment, The Recovery of Stolen Art, supra note 4, at 1128; see also supra note 15.

118 DeWeerth, 836 F.2d at 113; see supra note 108, and accompanying text.119 N.Y. Civ. Prac. L. & R. § 214(3) (McKinney 1972).120 See Comment, The Recovery of Stolen Art, supra note 4, at 1129.... 49 Misc. 2d 300, 267 N.Y.S.2d 804 (Sup. Ct. 1966), affd, 24 N.Y.2d 91, 246

N.E.2d 742, 298 N.Y.S.2d 979 (1969); see generally Note, Title Disputes in the ArtMarket, supra note 4, at 451-52; Comment, The Recovery of Stolen Art, supra note 4,at 1133-36; see also supra note 109.

122 Generally, a cause of action for replevin of stolen property accrues "at the timeof the wrongful taking," so that the statute of limitations begins running against thewould-be plaintiff even if he or she has no idea of the location of the property or theidentity of the defendant. Comment, The Recovery of Stolen Art, supra note 4, at 1131-32. An exception to the general rule is recognized where the property has been wrong-fully concealed. However, some scholars have pointed out that the traditionally privatenature of the art world, see supra note 95 and accompanying text, and "the nature ofpossession of fine art" in practical terms makes fraudulent concealment "in many casesvirtually indistinguishable from open, good faith possession, which itself necessarily in-volves some concealment." Comment, The Recovery of Stolen Art, supra note 4, at1131 n.36; see O'Keeffe v. Snyder, 170 N.J. Super. 75, 405 A.2d 840 (Super. Ct. App.Div. 1979), rev'd 83 N.J. 478, 416 A.2d 862 (1980) (statute of limitations held not tohave begun running against former owner of allegedly stolen paintings until possessorhad satisfied requirement of open and notorious possession by exhibiting paintings pub-licly). See generally Ward, The Georgia Grind: Can the Common Law Accommodate

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probably been conceived in order to protect the purchaser from suitwithout notice; 2 ' under the Menzel rule he or she became liable onlyafter being alerted to the tainted provenance of the property and beingafforded an opportunity to return it. However, the rule's practical effectcould benefit the claimant more than the good faith purchaser. Thelatter remained vulnerable to suit and to a consequent judgment requir-ing him or her to forfeit honestly bought property until the claimantchose to exercise his or her right to make demand."2 4

the Problems of Title in the Art World - Observations on a Recent Case, 8 J.C. &U.L. 533 (Fall 1981); Note, Title Disputes in the Art Market, supra note 4, at 455-56(discussing case and commending O'Keeffe court's advocacy of "discovery rule"whereby "a cause of action does not accrue until the injured party discovers, or by the'exercise of due diligence' should have discovered, the facts constituting the basis of hisaction"); cf. CPIA § 312(2), 19 U.S.C. 2611(2) (requirements for publication, etc., ofartworks acquired by United States museums and like institutions, in order to exemptthe works from embargo or seizure under the Act).

Cf. also H.R. 2389, 99th Cong., 1st Sess. (1985) and S. 1523, 99th Cong., 1stSess. (1985) (proposed federal Cultural Property Repose Act, protecting United Statesmuseums from suits to reclaim cultural property where museum met certain require-ments as to duration of possession and nature of publication and display of objects).Significantly, in 1986 such a proposal was passed by the state legislature of New York,although the bill was ultimately vetoed by the governor. Museum Repose Vetoed inAlbany, 7 IFAR REPORTS, July/Aug. 1986, at 3, cited in Nafziger, supra note 23, at251.

2 . See, e.g., Gillet v. Roberts, 57 N.Y. 28, 34 (1874) ("[A]n innocent purchaser of

personal property from a wrong-doer shall first be informed of the defect in his title,and have an opportunity to deliver the property to the true owner, before he shall bemade liable as a tortfeasor.") (emphasis in original), quoted in Comment, The Recov-ery of Stolen Art, supra note 4, at 1134-35); Atlas Assurance Co. v. Gibbs, 121 Conn.188, 195, 183 A. 690, 693 (1936), cited in Comment, The Recovery of Stolen Art,supra note 4, at 1138 n.66.

124 It has been suggested that the applicable New York statute, N.Y. Civ. Prac. L.& R. § 206(a) (McKinney 1972), directs the limitations period for replevin actions tobegin running as soon as the claimant has a right to make demand, not when theclaimant actually makes demand. See, e.g., Comment, The Recovery of Stolen Art,supra note 4, at 1136-37; see also Federal Insurance Co. v. Fries, 78 Misc. 2d 805,810, 355 N.Y.S.2d 741, 747 (Civ. Ct. 1974); N.Y. Civ. Prac. L. & R. practice com-mentary 206:1 (McKinney 1972), cited in DeWeerth v. Baldinger, 836 F.2d 103, 107n.3 (2d Cir. 1987), cert. denied, 486 U.S. 1056 (1988). Indeed, a literal reading of thestatute, which states that an action requiring demand accrues "when the right to makethe demand is complete," supports that interpretation. N.Y. Civ. Prac. L. & R. §206(a) (McKinney 1972).

However, the DeWeerth court, relying on Menzel and Elicofon, held the require-ment of demand on a good faith purchaser to be a substantive element of the plaintiff'scause of action for recovery. DeWeerth, 836 F.2d at 107 n.3. Therefore, the court con-cluded, the statute did not begin running until the requirement had been satisfied. Id.;see also Note, Title Disputes in the Art Market, supra note 4, at 453-54 (Elicofondecision, applying Menzel rule to allow plaintiff museum to avoid having its actionbarred by New York's statute of limitations, is consonant with Uniform CommercialCode's policy of placing burden of loss on party who "takes from the wrongdoer").

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8.4. Announcement of the Due Diligence Rule

Observing this possible unfairness in the operation of the demandand refusal rule, the DeWeerth court stated that the claimant in such acase was under a legal obligation to avoid unreasonable delay in mak-ing demand. 25 In support of its conclusion, the court cited Elicofon,among other cases. 2 The DeWeerth court then took the equitable no-tion of timely action 27 a step further, imposing a "substantive require-ment" of timely demand on the plaintiff at bar.128 "This rule, focusingon the plaintiff's conduct, conceptually starts the limitations period atthe point where the plaintiff has had an opportunity to use due dili-gence in locating the property and making a demand, and has failed tod o SO .

'129

The court's interpretation of the ban on unreasonable delay inMenzel-type cases represents DeWeerth's major precedential signifi-cance. That the plaintiff's claim was ultimately found barred by thestatute of limitations is less important than the court's articulation of itscentral inquiry: "Whether New York law imposes upon a person whoclaims ownership of stolen personal property an obligation to use duediligence in attempting to locate the property." 3 '

8.4.1. Legal Reasoning Underlying the Due Diligence Rule

To reach an affirmative answer, the DeWeerth court adopted arather novel approach to the concept of accrual. The discussion of thisissue, found in footnotes to the court's opinion,1 3' relies on a certain

125 DeWeerth, 836 F.2d at 107. As this Comment goes to press, the New YorkCourt of Appeals has, however, reinterpreted the "due diligence" rule. In Solomon R.Guggenheim Foundation v. Lubell, 153 A.D.2d 143, 550 N.Y.S.2d 618 (1990), affd,N.Y.2d , N.E.2d , N.Y.S.2d , No. 3 (N.Y. Feb. 14, 1991) (WESTLAW WL17119, New York Cases data base), wherein the Guggenheim Museum sued an indi-vidual purchaser of a Chagall gouache allegedly stolen from the museum's collection,the court dismissed the purchaser's statute of limitations defense based on DeWeerthand affirmed the Supreme Court's denial of summary judgment for the defendant,holding that the plaintiff's due diligence in searching for the stolen artwork goes not tothe statute of limitations but, rather, forms part of a laches defense.

126 Id.12 The judge-made requirement of avoiding unreasonable delay surely derives

from principles of equity. Nevertheless, the opinion in DeWeerth clarified, "While thisproscription against unreasonable delay has been referred to as 'laches,' the New Yorkcourts have explained that the doctrine refers solely to an unexcused lapse of time andnot to the equitable principle of laches, which requires prejudice to the defendant aswell as delay." 836 F.2d at 107 (citations omitted); see also id. at 110.

128 Id. at 107 n.4.129 Id.130 Id. at 107.131 Id. at 107 nn.3, 4.

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amount of legal legerdemain to establish a foundation for imposing a"due diligence" requirement on DeWeerth. With the help of prece-dents, including Menzel v. List, the court placed a somewhat strainedinterpretation on the clear wording of the applicable New York stat-ute.132 The DeWeerth argument first echoes Menzel in characterizingthe requirement of demand on good faith purchasers as a "substantive"element - and thus a prerequisite to accrual - of a cause of action forthe return of stolen personal property. 13 Based on this reasoning,DeWeerth was allowed to escape the strictures of statutory languagethat on its face seems to start the limitations period as soon as the de-fendant acquires the disputed property, whether or not the plaintiffknows whom to sue.13 4

The court then continued by explaining its distinction between thestatutory limitations period and that "reasonable" time granted a plain-tiff like DeWeerth to bring suit.' 35 The court concluded that the formershould be strictly applied "only where the demand requirement is pro-cedural." In cases such as DeWeerth where demand is a substantiverequisite,136 the "unreasonable delay rule" also applies "as a substan-tive requirement.'1 3 7 Having extracted from precedent this "unreasona-ble delay" bar to actions against good-faith purchasers, the court thenused it as a basis for the new "due diligence" requirement. 38

DeWeerth's elaborate construction of the New York statute of lim-itations thus rests on the ill-defined dichotomy between "substantive"and "procedural" elements of the cause of action. Clearly, theDeWeerth court took full advantage of its judicial prerogatives by graft-ing common law doctrines onto statutory formulations in order to reacha desired result."3 9

8.4.2. Policy Underlying the Due Diligence Rule

The "due diligence" rule is intended to advance the original pur-pose of the demand and refusal rule - protection of the good-faithpurchaser - and to eliminate the incidental anomaly of leaving the

13 See N.Y. Civ. Prac. L. & R. § 206(a) (McKinney 1972).13 DeWeerth, 836 F.2d at 107 n.3.134 Id. See generally Comment, The Recovery of Stolen Art, supra note 4, at

1128-30 (vague statutes of limitations in many states leave presence of facts or eventsconstituting accrual to be determined by courts; "the vast majority of states specificallyhold that a lawsuit may be filed and maintained even though the identity of the defend-ant is unknown").

135 DeWeerth, 836 F.2d at 107 n.4.136 See supra note 128 and accompanying text.137 DeWeerth, 836 F.2d at 107 n.4.138 Id."' See supra text following note 124.

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purchaser indefinitely vulnerable to suit. 40 The DeWeerth standardachieves this goal by imposing stringent requirements on a plaintiffseeking to nullify the legitimate purchase of a work of art."4 UnderDeWeerth, the former owner must not merely avoid "sleeping on hisrights" once the property has been located and its possessor identified;he must also take affirmative steps to find and contact the possessor assoon as possible after discovering the loss."4 2

The court of appeals found that DeWeerth, although she had ini-tiated several inquiries about the lost Monet following the War, 43 hadnot exercised sufficient diligence in her search. Reversing the districtcourt's holding, the Second Circuit deemed the plaintiff's, suit time-barred and thereby effectively granted quiet title to Baldinger, thegood-faith purchaser. Hence, the actual operation of the new "due dili-gence" rule in DeWeerth proved as harsh to the theft victim as if thecourt had found her claim barred under a literal reading of the statuteof limitations.1

4 4

9. IMPACT OF DEWEERTH

9.1. Implications of DeWeerth for Art Market Transactions

The DeWeerth doctrine places too great a burden of investigation

I'l See DeWeerth, 836 F.2d at 108-09 ("obligation to attempt to locate stolenproperty is consistent with New York's treatment of the good-faith purchaser"). Thecourt observed that the policies underlying the demand-refusal rule "would be frus-trated if plaintiffs were free to delay actions for the return of stolen property until theproperty's location fortuitously came to their attention." Id. at 109.

141 The DeWeerth rule protects a sale of art where the purchase transaction itselfwas legitimate, whether or not the provenance of the work was untainted. See infratext accompanying notes 154-58. This approach views in isolation each transaction inthe chain of possession of the work of art. Cf. supra text accompanying notes 34-35.

142 See supra note 135. The application of a "discovery rule" in actions for re-plevin of stolen art work would achieve similar results, taking into account both parties'interests. See Comment, The Recovery of Stolen Art, supra note 4, at 1149-52. Propo-nents of the discovery rule have not gone as far as the court in DeWeerth in requiringthat the victim must take expeditious action to locate the missing art. One observer hassuggested that guidelines for applying the discovery rule (in which the statute of limita-tions would begin running only after the plaintiff has learned the relevant facts sur-rounding the fate of his property) should include, but not be limited to, the following:"(1) [T]he nature of the injury; (2) the availability and quality of witnesses and physi-cal evidence; (3) the lapse of time since the initial wrongful act; (4) whether the cir-cumstances permit the inference that the delay has been intentional or deliberate; and(5) whether the delay has unusually prejudiced the defendant." Id. at 1152.

143 See supra text accompanying notes 81-85.144 At trial DeWeerth's counsel had argued that "no New York court has ever

held that the unreasonable delay rule applies before the plaintiff has learned the iden-tity of the person to whom demand must be made." DeWeerth, 836 F.2d at 107 (em-phasis in original).

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on the plaintiff, leaving the purchaser free to traffic in stolen art aslong as she remains ignorant. The court's opinion may not encouragethe private connoisseur to inquire deeply into the provenance of eachpiece she buys.145 However, in rendering its decision, the DeWeerthcourt stressed the particular facts of the case. 46 The court felt that be-cause DeWeerth was a sophisticated collector it was not unreasonableto expect her to have pursued a more rigorous investigation into theMonet's whereabouts.147 Presumably, future New York courts would

145 Regarding the varying obligations to investigate title which art sellers and pur-chasers may have under the U.C.C., depending on such factors as merchant status ormere familiarity with commerce in art, see Note, The Current Status, supra note 1, at61 n.56; Note, Sales of Illegally Exported Art, supra note 49, at 307-09.

In Porter v. Wertz, 68 A.D.2d 141, 416 N.Y.S.2d 254 (1979), affd, 53 N.Y.2d696, 421 N.E.2d 500, 439 N.Y.S.2d 105 (1981), a New York court did in fact hold thatart merchants have some duty, implicit in their observance of "reasonable commercialstandards," to investigate title in order to be considered good-faith purchasers under theU.C.C. and, therefore, to qualify for certain protections under the Code. See the discus-sion of this case in Note, Title Disputes in the Art Market, supra note 4, at 445-50.Compare the obligations on institutional purchasers imposed by the CPIA, summarizedin Nafziger, supra note 23, at 256. Professor Nafziger's discussion of the policies andlaw of repose in the context of the international art trade is also illuminating. Seegenerally id.; cf. also Note, Title Disputes in the Art Market, supra note 4, at 450("[T]he most effective incentive for investigating title before purchasing art from anunknown seller is the potential for losing an art work to the owner from whom it wasstolen and being left with no way to recover the investment.").

146 See DeWeerth, 836 F.2d at 110 ("The question of what constitutes unreasona-ble delay in making a demand that starts the statute of limitations depends upon thecircumstances of the case.").

1,1 Citing O'Keeffe v. Snyder, 170 N.J. Super. 75, 405 A.2d 840 (1979), the courtstated that "when the property is valuable art, the search efforts that may reasonablybe expected of an owner may be more exacting than where the property is of a differentkind or of a lesser value." DeWeerth, 836 F.2d at 110. It then continued to rely on adiligence standard deduced from Kunstsammlungen zu Weimar v. Elicofon, 678 F.2d1150 (2d Cir. 1982) to show that DeWeerth's search had been inadequate. DeWeerth,836 F.2d at 111-12.

In particular, the court found "inexcusable" DeWeerth's failure to consult theWildenstein Catalogue Rdisonni of Monet's work, where her nephew quickly and eas-ily found clues to the picture's current location. It may be said, however, in DeWeerth'sfavor, that although the painting was recorded and its provenance documented (thoughsketchily) in an easily accessible reference work, the Wildenstein Catalogue Raisonngwas not published until 1974 - thirty years after DeWeerth's loss. Moreover, as thedistrict court had recognized, earlier published references to Champs de Bl were notwidely known to private individuals; an elderly woman might well not "be expected tomount the sort of investigation undertaken by the government-owned art museum inElicofon." DeWeerth, 836 F.2d at 122 (citing DeWeerth, 658 F. Supp. at 694-95).

In any case, the difficulties involved in tracing the whereabouts of objets d'artshould not be underestimated. Many an art historian has built her reputation by docu-menting "lost" artworks, after long and assiduous research. The considerable obstaclesfaced by those searching for "undiscovered masterpieces" (which are often simplyhoused in unpublicized private collections) are illustrated by the problems scholars havehad in establishing and coordinating an international archive to help locate stolen art.What efforts have been successful have been quite useful, yet many more hurdles re-main for those who would maintain a comprehensive record of the international move-

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be more lenient in the case of a claimant unfamiliar with the art worldand having little idea of what channels to pursue in searching for amissing painting.1 4

. The "due diligence" rule represents a judicial attempt to strike ajust and realistic balance between the responsibilities of the claimantand the purchaser in the art market. 4 As noted above, the new ruleprotects the bona fide purchaser from indefinite exposure to suit, yetaffords the claimant a fair chance to bring her case into court.'50 TheDeWeerth court recognized that the private nature of art ownershipmakes it impossible for the art theft victim to learn the whereabouts ofproperty without some sleuthing effort.1 ' On the other hand, the courtasserted, because works of art like DeWeerth's painting arenonfungible, readily recognizable objects, "the owner of stolen art has abetter chance than most owners of stolen property in tracking down the

ment of cultural property. See Note, Title Disputes in the Art Market, supra note 4, at458-63 & notes (describing existing resources for investigating title to art works, andproblems attending the functioning of such resources); see also 2 J. MERRYMAN & A.EISEN, LAW, ETHICS AND THE VISUAL ARTS 2-109 (1979); Feldman & Burnham, AnArt Theft Archive: Principles and Realization, 10 CONN. L. REv. 702 (1978). Seegenerally L. DuBOFF, ART LAW IN A NUTSHELL 51 (1984) (describing InternationalArt Registry, Inc., a service which, for a fee, provides certificates of authenticity andtitle to works of fine art, in addition to helping finance acquisitions).

Cf UNESCO Convention, Art. 10(a) (whereby parties undertake "to oblige an-tique dealers, subject to penal or administrative sanctions, to maintain a register record-ing [the origin, description, and fate] of each item sold and to inform the purchaser ofthe cultural property of the export prohibition to which such property may be sub-ject"). This provision of the Convention, tellingly, was not included in the OPIA andtherefore not adopted by the United States. Cf also S. 1619, 100th Congress, 1st Sess.§ 3(e) (1987) (registration procedures contemplated by proposed Visual Artists' RightsAct, unenacted); Note, The Illicit Movement of Art and Artifact, supra note 14, at 75-76 & n.148 (recently implemented New York state regulations of art trade, thoughmore stringent than old law, still do not require art dealers and auctioneers to maintainregisters detailing provenance and export certification of artworks). But see Note, TitleDisputes in the Art Market, supra note 4, at 444-50 (standards of good faith for artmerchants should include title verification).

148 See supra note 141. Interestingly, the DeWeerth court says nothing of its ex-pectations regarding Baldinger, the victorious defendant. Presumably the court consid-ered Baldinger, as a private collector, justified in relying on what assurances Wilden-stein had given her regarding good title to the Monet. See DeWeerth, 836 F.2d at 105.The record does not disclose whether she was as "wealthy and sophisticated" asDeWeerth, and the opinion does not indicate what impact her level of familiarity withthe art world had on her duty (if any) to investigate title to the painting she hadpurchased. Cf Note, The Current Status, supra note 1, at 61 n.56 (discussing bearingof purchaser's position on outcome of art market dispute under the U.C.C.).

149 See supra note 141.150 See generally Comment, The Recovery of Stolen Art, supra note 4 (statutes of

limitations must balance defendant's interest in repose against ability of plaintiff tohave meritorious claim heard in court).

151 DeWeerth, 836 F.2d at 109; cf. Comment, The Recovery of Stolen Art, supranote 4, at 1131 n.36, 1147 (indicating problems in establishing any "standard of open-ness" of possession of fine art).

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item he has lost."11 52

The value of a stolen art object even on the illicit market lies notin the materials of which it is composed, but in its aesthetic merits orits historical or cultural significance."5 ' Because the object's value isthus related to its very uniqueness, it is in the seller's own interest topreserve the object in its original state. The object will indeed be easilyidentifiable once seen.154 The DeWeerth court is therefore correct inpostulating the relative obviousness of an artwork's passage through thepublic market.

However, fair application of the DeWeerth standard will requirethat courts bear in mind that most art sales occur not on the auctionfloor but through private parties. As observed above, even legitimateartworld transactions are conducted in some secrecy.' 55 Once the art issold, furthermore, it may seldom be seen by anyone except the ultimatepurchaser. In addition to the private nature of ordinary use of a workof art, not all artworks offered for public display are accepted by insti-tutions mounting exhibitions.'1 6

152 DeWeerth, 836 F.2d at 109.153 See supra notes 32-36 and accompanying text.

' See Nafziger, International Penal Aspects, supra note 36, at 836 & n.7 (rec-ognizability of a unique and valuable piece "seems to increase the vulnerability of art tofuture attack by thieves and vandals [but] also constitutes its strongest defense").

155 See, e.g., supra text accompanying notes 91-92; infra note 160.156 See Comment, The Recovery of Stolen Art, supra note 4, at 1147 ("Even if

suitable display space were available among the rather limited group of 'major metro-politan galleries and museums,' the standard of openness contemplated by [the court'sopinion in O'Keeffe v. Snyder] glosses over the undeniable fact that not all works of allartists - even many works of considerable value - merit museum display."); cfCPIA § 302(2)(C)(ii), 19 U.S.C. 2601 (embodying policy of avoiding export restric-tions on archaeological or ethnological material that may be of cultural value but lacks"distinctive characteristics, comparative rarity" or significant contribution to knowledgeabout the people that produced it).

The defendant in O'Keeffe v. Snyder, 170 N.J. Super. 75, 405 A.2d 840 (1979),an action for replevin of a stolen painting, had claimed title to the picture by adversepossession and averred that the owner's claim was barred by the relevant statute oflimitations. The appellate court held that the statute would be tolled only when a de-fendant had satisfied all of the elements of adverse possession, but that Snyder's posses-sion had not been "open and notorious." Id. at 84, 405 A.2d at 846. His failure to meetthis requirement was predicated on the fact that the disputed painting had been onpublic display only once during the time the defendant and the painting's previousowner - his father, who had given him the work - had possessed it. See id. at 80,405 A.2d at 842; Comment, The Recovery of Stolen Art, supra note 4, at 1146 &nn.103-04.

The DeWeerth court declined to follow O'Keeffe's example by imposing a duty of"open and notorious possession" on good faith purchasers. But see DeWeerth, 836 F.2dat 112 (noting that the Monet had in fact been published and exhibited, althoughbriefly, in New York since its disappearance from Germany; therefore, the court statedrather harshly that had DeWeerth "undertaken the most minimal investigation duringthis period, she would very likely have discovered the Monet"). The DeWeerth opiniondid, however, cite O'Keeffe in support of its imposing a "duty of reasonable investiga-

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The DeWeerth court implicitly recognized this problem as the duediligence standard by which it decided DeWeerth's standing to sue in-cluded no requirement of significant public display whereby she mighthave been alerted to the location of Champs de blb. 157 This lenientstance regarding openness of possession parallels the CPIA's approachto good faith purchasers of cultural property. For example, section312(2) provides that cataloguing or publication, not necessarily displayof the cultural object itself, can suffice to exempt objects acquired by apublic institution from seizure or other remedies under the Act.158

9.2. Possible Effect of DeWeerth on Art Market Regulation

The effect of DeWeerth will be to protect good faith purchasers inthe vitally important New York art market'59 and to diminish legalbattles among its participants. Although the DeWeerth opinion does notsuggest that professional art dealers have no obligation to maintainhonest and fair dealings in their trade by investigating the provenanceof artworks they buy and sell,' the "due diligence" rule, as discussed

tion," in addition to the demand and refusal requirement, on current possessors subjectto a statute of limitations. DeWeerth, 836 F.2d at 109.

'57 See supra note 95.158 CPIA § 312(2), 19 U.S.C. 2611. Only publicly owned museums are within the

scope of the CPIA at all. See Note, The Illicit Movement of Art and Artifact, supranote 14, at 64-65 (noting that Convention governs only nationally controlled institutionsand that Congress intends art dealers to be governed by state law rather than federal);cf. CPIA § 307, 19 U.S.C. 2606 (limiting scope of State Party's ability to invoke Cus-toms restrictions on cultural property to documented objects).

15I See DeWeerth 836 F.2d at 109 (noting that the duty of reasonable diligence,among other benefits, serves the policy of protecting good-faith purchasers).

160 For an argument against the common art market practice of requiring docu-mentation of provenance before concluding a sale, see Note, Sales of Illegally ExportedArt, supra note 49, at 281-82:

The trade usage that reputable art dealers must document title and prove-nance in order to sell on the legitimate market is therefore legally super-fluous - a self-imposed restriction that does not reflect legal necessity. Itis not required to protect buyers or sellers from foreign governmentswhich, barring treaty, are unable to force the return of works from beyondtheir borders and should be unable to confiscate them within.

Compare the discussion of Jeanneret v. Vichey, supra text accompanying notes 49-79.In practice, the respected legitimate art dealer usually does offer a potential pur-

chaser some documentation of the given work's provenance, or at least offers to producedocumentation on request. The offer is made as a show of good faith, as much to assurethe buyer of the quality of the pedigreed artwork as of the legality and finality of hispurchase. However, unless the purchaser is especially savvy or insistent, he will receiveonly the dealer's representations and selected "proof" as to the artwork's history.Though often the provenance is thoroughly documented and virtually unimpeachable, itmay also be sketchy or speculative as a result of the dealer's own lack of knowledge.For example, large and well-known commercial galleries, whom the lay consumer maybe more likely to trust than a smaller concern or an individual, commonly buy or con-sign works of art via "runners," or private, free-lance dealers. Their dealings may in

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above, places an onerous burden on the plaintiff seeking to challengethe legitimacy of an art purchase, regardless of the legitimacy of thework's provenance. Because this burden applies where a work of artwas believed to have been stolen (in the commonly accepted sense),"1"as in DeWeerth itself, one might comfortably speculate that New Yorkcourts would be even less willing to penalize the good faith purchaser- whether a private collector or a museum - in a case where a for-eign sovereign bases a claim to title on self-declared ownership. 2 Still

fact be perfectly legitimate, but the runners are frequently loath to divulge the sourcesof their wares. See Grimes, supra note 19, at 24.

The secrecy associated with art market transactions results from tradition, fromprivacy interests, and - probably most important - from the desire by all parties toavoid taxation. In addition, provenance before very recent years is often difficult totrace accurately, due to the notorious informality of many art transactions. See id.Moreover, these transactions may be nonetheless complex and involve parties in severalcountries. It seems realistic to assume that all these compelling factors will continue tooperate, making meaningful legal regulation of the art world difficult if not virtuallyimpossible. See Note, The Current Status, supra note 1, at 61 & n.55 (galleries andauction houses "often unwittingly facilitate fraud because of the casual nature in whichthey conduct business and the amorphous methods of authentication they utilize"). Themost effective guarantee of honesty and good faith in the art trade will remain thedanger of a dealer's losing her reputation - and her business - should legal wranglesdevelop over good title to pieces she has sold. Cf. supra note 53 (inability of artmerchant to vend on the legitimate market a painting stigmatized by questionable title).

Nevertheless, numerous commentators, scholars, and legislators continue to ad-vance a variety of possible means to demystify and regulate the commercial art trade.See Glueck, New York Studies Regulating Art Sales Like Commodities, N.Y. Times,Jan. 16, 1991, at C9, col. 1; Mullarkey, Price Affixing, The Nation, Apr. 30, 1988, at592 (advocating control of art galleries under New York consumer protection laws);Note, Sales of Illegally Exported Art, supra note 49, at 318-19 (suggesting amend-ments to Uniform Commercial Code, Article 2, to clarify consequences of dealing inillegally exported art); Note, Title Disputes in the Art Market, supra note 4, at 458-63(advocating use of art-theft archives to aid in policing illicit art traffic and describingmeasures currently underway); Id., at 444 n.8 (citing recent state-level legislation toregulate art market); Id. at 449 n.45 (museum and commercial self-regulation and pro-posals for external controls); Comment, Regulation of the New York Art Market: Hasthe Legislature Painted Dealers into a Corner?, 46 FORDHAM L. REv. 939 (1978)(attempts by New York legislature to regulate art trade); Feldman & Burnham, supranote 147 (discussing efforts of International Foundation for Art Research to curb illegalart trade and the general efficacy of art registries); Du Boff, Controlling the ArtfulCon: Authentication and Regulation, 27 HASTINGS L.J. 973 (1976) (consumer protec-tion mechanisms can be used in investigating art transactions; other measures such asdealer certification would also be valuable). But see, e.g., Kramer, The Case AgainstPrice Tags on Art, N.Y. Times, Mar. 20, 1988, at H33, col. 1 (arguing against regula-tion of art galleries as ordinary retailers). One London art dealer has acknowledged:"[Ojutside regulators could create as many problems as they solve - they may not knowthe market well enough. Ideally, self-regulation is better. But if a dominant firmstretches the unwritten norms of the past, [self-regulation] may not be enough."Hughes, supra note 4, at 63.

161 Compare discussion of United States v. McClain, 545 F.2d 988 (5th Cir.1977), reh'g denied, 551 F.2d 52 (5th Cir. 1977), and United States v. McClain, 593F.2d 658 (5th Cir. 1979), supra note I and accompanying text.

16 See discussion of McClain, supra note 1. But cf. Autocephalous Greek-Ortho-

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less promising would be the case where a plaintiff based his claim totitle on a violation of a foreign export regulation intended to secure theexporting country control of what it considers "national patrimony." 16 3

Such enhanced protection of good-faith buyers will doubtless benefit theUnited States economically by stabilizing art transactions and therebyencouraging sales in New York, the national hub of the art trade.1 4

10. OVERVIEW OF THE CURRENT TREND IN UNITED STATESPOLICY

The policy underlying both DeWeerth and the CPIA encouragesthe private resolution of title disputes over works of art." 5 In addition

dox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 917 F.2d 278 (7th Cir.1990).

13 Cf Note, The Current Status, supra note 1, at 76 ("International cooperationin regulating the illicit movement of cultural property is more readily apparent withregard to 'stolen' goods as opposed to 'illegally exported' goods.").

164 One possible problem with the more relaxed policy recently evinced by Con-gress and the courts is the danger of the United States art market becoming a "laun-dry" for artworks of unclean title. See id. at 75 n.131 ("[T]he United States has beencalled a 'dumping ground' for stolen art."); cf. Nafziger, supra note 23, at 251 (notingthat opponents of federal legislation impeding foreign claims for the return of culturalproperty "would convert the United States into a pirate's cove for contraband arti-facts"); S. WILLIAMS, supra note 15, at 129 (stating that the United States pre-CPIA,laissez-faire policy made "[tihe United States . . . the largest market for stolen or ille-gal[ly] exported cultural property [in the world]"). Indeed, this type of concern led tothe harsh measures adopted during the 1970s in the United States' efforts to curb traf-fic in looted art and antiquities. See supra notes 11, 35-36, 39 and accompanying text.

However, as many critics of overbroad restrictions on the international art tradehave noted, unilateral action by the United States will only drive the black market -and the legitimate market - elsewhere, leaving the United States economically disad-vantaged. See McAlee, The McClain Case, supra note 1, at 814. It is apparently thisrealization that has caused the political pendulum to return from a position of greatdeference to the claims of art-exporting countries to one of evincing more concern forthe rights and concerns of parties to United States art transactions. See supra textaccompanying notes 19-21.

16" Not only will the "due diligence" rule operate to curb extensive litigation bybarring many claims from going forward, but the decision seems calculated to promoteprivate dispute resolution. The "due diligence" rule represents a doctrinal extension ofthe "demand and refusal" rule, which itself added to ordinary limitations law a re-quirement that the parties deal with each other directly (the prospective plaintiff re-questing her property and the potential defendant making a reply) before a cause ofaction may be found. See supra notes 127-42 and accompanying text.

Indeed, since the initial submission of this Comment for publication, the "duediligence" rule seems to have worked the predicted effect in at least one highly publi-cized case. There, a German church filed, and later settled, a suit against the estate ofan American collector, for recovery of certain medieval art treasures and importantmanuscripts believed to have been stolen by the collector from Germany during WorldWar II. See Honan, Those in Art Case May Settle It Themselves, N.Y. Times, July 9,1990, at C13, col. 1 (discussing "due diligence" requirement); Honan, LootedTreasures Returning to Germany, N.Y. Times, Jan. 8, 1991, at C11, col. 1 (reportingsettlement reached).

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to the legal, political, and economic soundness of a retreat from overlyzealous enforcement of foreign claims and import restrictions throughlegal and administrative means,"6 this new "laissez-faire" policy coin-cides with the realities of the art trade.167 Using informal diplomatic orprivate means to deal with such international conflicts not only savesadminstrative expense and judicial resources 6' and avoids political ten-sion,"' 9 but also is more congenial to those accustomed to the traditionalinformality of the art trade.1 0 Moreover, as one commentator hasobserved:

The efficacy of [the] comprehensive legal framework[for penalizing illegitimate international trade in culturalproperty] is debatable. Its primary effect thus far has notbeen so much to punish individuals, but rather to facilitatethe restitution, return, or forfeiture of cultural property, andto raise public consciousness and respect for the integrity ofcultural provenance and property ownership, whether public

166 See, e.g., P. BATOR, supra note 1, 41-43, 77-78, 90-91 (negative consequencesof enforcing broad export restrictions); S. WILLIAMS, supra note 15, at 170 (enforce-ment of overly restrictive export laws inhibits legitimate flow of cultural property andfosters black market); Nafziger, International Penal Aspects, supra note 36, at 846-52(discussing problems in exercising legal control over illicit movement of cultural prop-erty); see also Note, Title Disputes in the Art Market, supra note 4, at 444-45 (indicat-ing free trade policy underlying the U.C.C., adopted in most states). But see Note,Harmonious Meeting, supra note 1.

167 See, e.g., McAlee, From the Boston Raphael, supra note 1, at 604 (noting thepractical need for reciprocity with United States enforcement of import restrictions oncultural property). As Congress considered proposed legislation to implement theUNESCO Convention, arguments before both the House and the Senate stressed that ifthe United States were to adopt its provisions while other art-importing nations refusedto do so, the result would "not put an end to world trade in the art which it embargoesbut [would] succeed only in rerouting the flow of such art from the United States tosuch countries as Switzerland, West Germany, England, France, and Japan." Id.(quoting Statement of the American Association of Art Dealers in Ancient, Orientaland Primitive Art at 20); see also id. at 604 n.177; Comment, The Evolution of Ameri-can Attitudes, supra note 6, at 633-35 (market vulnerability of United States withrespect to other major art importers).

16' Fitzpatrick, supra note 1, at 871-73 (citing reasons for critique of UnitedStates Customs Service's overenforcement of embargoes based on foreign export restric-tions on cultural property); see also, e.g., Honan, Looted Treasures Returning to Ger-many, N.Y. Times, Jan. 8, 1991, at C11, col. I (chief lawyer for German plaintiffs insuit for recovery of medieval art in American hands expressed satisfaction with settle-ment because "the total expense for recovery of all the treasures is less than the sumoriginally allocated by the German Government last April for one manuscript from thehoard, the so-called Samuhel Gospels").

169 See, e.g., Nafziger, International Penal Aspects, supra note 36, at 845("[M]unicipal controls that bar all exports of objets d'art, such as the Mexican system,create a black market, encourage a cottage industry in forgeries, generate internationaltensions, and do little to prevent illegal trafficking in antiquities.") (emphasis added).


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or private.171

The cooperation among nations and cultural institutions7 2 fostered bythe approach recently adopted by the United States thus presents anattractive and feasible alternative to complex and problematic interna-tional litigation or administrative sanctions.173

11. FUTURE EVOLUTION OF CULTURAL PROPERTY LAW

11.1. Administrative Treatment of Art World Disputes

On the administrative or executive level, observers of culturalproperty law await the outcome of requests instituted under the provi-

"ll Nafziger, International Penal Aspects, supra note 36, at 846.172 See infra notes 188-93 and accompanying text. Self-regulation by museum

professionals and scholarly institutions has also gained greater currency as a means tocurtail illicit trading in cultural property. See P. BATOR, supra note 1, at 80-90 (dis-cussing the responsibility of museums to regulate acquisitions with an eye to preventingillicit trade in cultural property); Note, The Current Status, supra note 1, at 63 n.60(discussing standards governing art acquisitions, loans, etc., set by museum organiza-tions and individual institutions); United States v. McClain, 545 F.2d 988, 996 n.14(5th Cir. 1977) (noting numerous museums that have adopted voluntary policy ofprohibiting acquisitions not "accompaned by a pedigree"). The University of Pennsyl-vania Museum in 1970 was the first to adopt a voluntary policy of ascertaining clearprovenance before acquiring an archaeological or ethnological object for the Museum'scollection. See P. BATOR, supra note 1, at 81 n.144.

173 For a recent example of a compromise that avoided an international legal bat-tle, see Walker, Warrant for Lee's Arrest Dropped, ART NEws, Summer 1987, at 30.The government of France had issued an arrest warrant for Sherman Lee, director ofthe Cleveland Museum of Art, claiming that the museum's possession of a certainpainting was unlawful. The work, by the celebrated seventeenth-century Frenchpainter Nicolas Poussin, had been removed from France without an export permit.Although the picture was legally imported into the United States, France claimed thatit had the right to title. The museum, which had purchased the work in good faith froma French citizen, argued that a certain exception in French law made the export legal.France disagreed. At last the parties reached a compromise, whereby the museum re-tains title to the Poussin but will allow it to be displayed in France for part of eachyear. Compare Erlanger, Stolen Plaque Is Returned to a Bangkok Museum, N.Y.Times, Feb. 9, 1989, at C17, col. 1 (discussing return of stolen museum piece by gal-lery owner alerted to its illicit provenance by curator from the Metropolitan Museumof Art, New York) with Stille, supra note 38, at 33, col. 1 (discussing return, afteracrimonious struggle, of legally acquired sculpture, considered a national treasure, toThailand by Art Institute of Chicago, in return for comparable work of Thai artdonated by a private foundation); see also P. BATOR, supra note 1, at 4 n.11 (discuss-ing discreet return to Italy, by Boston Museum of Fine Arts, of smuggled Raphael).

Cf Note, The Illicit Movement of Art and Artifact, supra note 14, at 65 (describ-ing "broad policy statements encouraging international cooperation and assistance inpreserving every nation's cultural heritage" which are included in the 1972 UNESCOConvention Concerning the Protection of World Cultural Property and Natural Heri-tage); MeAlee, From the Boston Raphael, supra note 1, at 593 (noting initial require-ment of 1970 Mexican-American treaty to request the return of stolen cultural prop-erty "through diplomatic offices," for "[i]f the nation receiving the request cannotreturn the stolen property, it is obliged to institute judicial proceedings for recovery").

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sions of the CPIA by Bolivia and Canada.174 Until 1989, the first andonly action completed by the United States government under theUNESCO Convention and its implementing legislation was the imposi-tion of emergency import restrictions on certain pre-Hispanic artifactsfrom El Salvador, at that country's request.17 5 Those restrictions wereimplemented according to the "emergency" provisions of section 304 ofthe CPIA, meaning that the class of objects covered is of high culturalvalue to the requesting country and in great jeopardy from "pillage,dismantling, dispersal, or fragmentation. 1 7 8

An interesting question that will perhaps be determined by theresolution of the Canadian and Bolivian claims is whether use of these"tcrisis" provisions, whereby the Convention's requirement of multilat-eral international action is waived, will overtake the ordinary embargoscheme the CPIA prescribes in section 307.177 If the Cultural PropertyAdvisory Committee readily accepts an art-exporting nation's ownclaims that its patrimony will remain in imminent peril unless theUnited States imposes a unilateral ban on imports of a certain class ofcultural property, the regime of McClain will not have been effectivelyended."' 8

11.2. Judicial Treatment of Art World Disputes

The current viability of the McClain doctrine itself may be illumi-nated by the final disposition of a case pending at this writing in theUnited States District Court for the Central District of California. Inthat case, the United States Customs Service seized certain archaeologi-cal material from the Setnams, art dealers who had acquired the mate-

174 At the writing of this Comment in 1989, the Cultural Property Advisory Com-mittee, see CPIA § 306, 19 U.S.C. § 2605, was investigating the Canadian and Boliv-ian requests. United States Information Agency, Curbing Illicit Trade in CulturalProperty: United States Assistance under the Convention on Cultural Property Imple-mentation Act 10 (rev. ed. July 1988) [hereinafter USIA booklet] (available from Cul-tural Property Staff, U.S.I.A., Washington, D.C.).

On Bolivia's efforts to recover cultural property the Bolivian government allegedhad been taken unlawfully from the country, see Stille, supra note 38, at 1, col. 1.

175 See Import Restrictions on Archaeological Materials from El Salvador, 52 Fed.Reg. 34,616 (1987); USIA booklet, supra note 174, at 9-10.

16 CPIA § 304(a), 19 U.S.C. § 2603.177 Paul M. Bator, Lecture at Practising Law Institute Program on Art Law,

New York City (July 15, 1988) [hereinafter P. Bator, PLI Lecture].178 See supra note 1 (discussing McClain); text accompanying notes 36-45 (ob-

serving problems in defining "national patrimony"); cf. Fitzpatrick, supra note 1, at871 (noting that current customs policy regarding pre-Columbian artifacts "reflects apolicy that the United States will unilaterally respond to the ownership declarations offoreign countries" and in doing so "rejects one of the most important underpinnings ofthe Cultural Property Law [CPIA] - 'the principle of participation in a concertedinternational effort' ").

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rial in Peru and had resold it in the United States.1"9 The government'sarguments in prosecuting the importers for illicit art trafficking rely onthe McClain theory, equating with theft the unlawful exportation ofartwork from a country with title-vesting or forfeiture legislation.18 °

Resolution of the Swetnam case could furnish a more current guidepostfor Customs 81 and for federal courts faced with claims alleging theillegal importation of stolen national treasures.1 2

Further guidance may also lie in the resolution of a current con-flict between the Republic of Turkey and New York's MetropolitanMuseum of Art. 83 Turkey sued the Museum seeking the recovery ofancient Lydian artifacts acquired by the museum "from two respectable

179 In re Seizure of Pre-Columbian Objects and Business Records, No. 21491(C.D. Cal. complaint filed in 1988), referenced in P. Bator, PLI Lecture, supra note177. See generally Sward, U.S. Battle Over Peru's Art Treasures, San FranciscoChronicle, Apr. 24, 1989, at Al, col. 1 (giving a generally objective account of facts inthe case, but reporting that the disputed works were taken from a single burial site inPeru).

Compare the description of a case in which criminal charges are being broughtagainst a San Francisco art dealer on behalf of the Bolivian government, seeking returnof garments alleged to be sacred vestments stolen from an Indian village in the Andes,in Stille, supra note 38, at 1, col. 1. The dealer in that case claimed that he purchasedthe textiles legitimately from local villagers. Id. at 1, col. 1.

ISo P. Bator, PLI Lecture, supra note 177. According to Professor Bator, how-ever, the government's arguments in the pending case are far more attenuated than inMcClain. The prosecution alleges that the provenance of the disputed pre-Columbianobjects is "mysterious," but that they must have been stolen from a number of countriesthat could have legal claim to title. Id. (Presumably this hypothesis is based onarchaeological evidence regarding the origins of the objects.) The imported materialwould be deemed contraband - and the importer subject to conviction under the Na-tional Stolen Property Act - on the basis of the material having been taken from anyone of those countries documented as having broad title-vesting or forfeiture statutes,which might cover the specific objects in question. See Sward, supra note 179, at Al,col. 3 (tracing a Peruvian provenance of objects and noting Peruvian government's con-tention that the objects cannot be held privately without permission of Peruviangovernment).

For a seminal account of the black market in such pre-Columbian objects, seeCoggins, Illicit Traffic of Pre-Columbian Antiquities, 29 ART J. 94 (1969).

181 For a description of the United States Customs Service's recent activities withregard to cultural property, and an argument that these activities contravene nationalpolicy as well as good law, see generally Fitzpatrick, supra note 1.

182 See Fitzpatrick, supra note 1, at 875; cf. McAlee, The McClain Case, supranote 1. Professor Merryman has recently observed: "Right now we have three levels ofpolicy which are often inconsistent.... We have the Cultural Property Act, we havethe McClain decision, and we have the [C]ustoms [S]ervice policy which bootstrapsMcClain." Stille, supra note 38, at 32, col. 4. Professor Fitzpatrick, too, has com-mented in an interview: "The Cultural Property Act says specifically that the CustomsService is not supposed to enforce other countries' export laws, but that's what they'redoing. Customs has. . .created a virtual embargo on all pre-Columbian goods." Id. Butcf. Note, Harmonious Meeting, supra note 1.

18 Republic of Turkey v. Metropolitan Museum of Art, 87 Civ. 3750 VLB(S.D.N.Y. 1987).

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dealers" during the 1960s." While the Turkish government claimedthat it was unable to make demand previously because the Museumhad concealed the works,1 85 the Museum, citing DeWeerth,"'s assertedthat Turkey's claim was barred by the statute of limitations and movedfor dismissal.1 87 The ultimate disposition of this case, well-known andclosely watched by the art world, will test the viability of bothDeWeerth and McClain.

11.3. Informal/Diplomatic Treatment of Art World Disputes

Finally, a current and highly publicized claim by the Italian gov-ernment against the J. Paul Getty Museum in California will indicatethe present ability of cultural institutions to settle such claims throughinformal channels. Italy complains that an enormous statue, which theGetty acquired in 1988, rightfully belongs to the Italian government aspart of its national patrimony. The statue, dating to the 6th centuryB.C. may represent the Greek goddess Aphrodite. Italy insists that itwas smuggled out of the country after having been excavated at anillicit dig in Sicily.188

The Getty Museum had conducted a year-long investigation of thestatue's provenance and its lawyers had been informed of no claims tothe statue by Italy's Ministry of Cultural Affairs before completingpurchase from a London dealer.18 9 However, critics assert that theGetty's investigation of the statue's "murky" provenance was insuffi-cient.19 For its part, Italy will have to show proof that the statue was

184 Stille, supra note 38, at 32, col. 4 (quoting statement 'by Ashton Hawkins,

General Counsel of the Metropolitan Museum of Art).185 Cf. supra notes 145-52 and accompanying text.le Republic of Turkey v. Metropolitan Museum of Art, 87 Civ. 3750 VLB

(S.D.N.Y.); Brief for Petitioner, referenced in Doreen Small, Lecture at PractisingLaw Institute Program on Art Law, New York City (July 15, 1988).

187 Stille, supra note 38, at 32, col. 4. The museum also objected to Turkey's"misguided" application of "today's collecting standards to yesterday's acquisitions."Id. at 33, col. 1; cf. McAlee, From the Boston Raphael, supra note 1, at 589-90 (dis-cussing the problem of after-acquired knowledge in the context of application of theMcClain doctrine).

On July 16, 1990, during the pendency of this Comment's publication, the UnitedStates District Court for the Southern District of New York denied the Museum'smotion for dismissal on the grounds that Turkey had unreasonably delayed its demandfor return of the Lydian objects. Honan,Judge Clears Way for Trial Over Turkish Artat Met, N.Y. Times, July 20, 1990, at C25, col. 1. The court left for litigation theissues surrounding Turkey's allegation that the objects were exported from Turkey inviolation of Turkish law, which maintains that the Turkish government holds title toall artifacts found there. Id.

18 Stille, supra note 79, at 33, col. 3.188 Id.L90 Id. (quoting statements made by Thomas Hoving, former director of the Met-

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indeed removed from the illegal Sicilian dig before the government'slegal claim to the Aphrodite can be considered valid. 91 In any event,both the Getty and the Italian Ministry of Cultural Affairs192 have ex-pressed the desire to resolve the controversy directly and peacefully.The Getty Museum asserts that if the Italian claim proves valid, it isprepared to return the statue, in keeping with the spirit of theUNESCO Convention.19

12. CONCLUSION

This Comment has attempted to demonstrate that a coherent re-solve has emerged in the past decade among United States executivepowers, legislators, and courts. This resolve, to avoid protecting theself-described national patrimony of art-exporting nations at the ex-pense of domestic commercial interests, is embodied in the terms of thenewly ratified Cultural Property Implementation Act and in the rea-soning behind the DeWeerth decision. Whether the United States willcarry through the policy these recent examples seem to announceshould become clear within the next few years, as foreign claimantscontinue to assert challenges to the good title of cultural property inAmerican collections.

ropolitan Museum).191 Id.

192 Id.193 Id. at 33, col. 4.

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